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THE  CONSTITUTIONAL   POWER    OF 

CONGRESS  OVER  THE  TERRITORY 

OF  THE  UNITED  STATES 


BY 


Henry  Wolf  Bikle 

(fellow  in  the  Department  of  Law) 


Issued  as  a  Supplement  to  the  American  Law  Register 
for  August,  1901. 


.v'^^' 

5%^ 


SPRECKELS 


COPYRIGHT,   IgOI 

BY   THB 

UNIVERSITY   OF   P^NNSYI^VANIA 


AVIL  PRINTINQ  CO.,  PHILAOA. 


This  essay  was  written  by  Mr.  Bikl^,  as  a  member 
of  the  Class  of  1901,  in  the  Law  Department  of  the 
University  of  Pennsylvania.  He  received  the  Shars- 
wood  Prize  for  the  best  essay  submitted  by  a  member 
of  the  graduating  class.  Under  the  direction  of  the 
Faculty  of  the  Department  it  is  now  printed  as  a  supple- 
ment to  the  AMERICAN  LAW  REGISTER  for  August. 

WM.  DRAPER  LEWIS, 

Dean  of  the  Department  of  Law. 


Philadelphia, 

August  I,  1901. 


I OOnOS 


TABLE  OF  CONTENTS. 


PAGE. 

List  of  Cases  Cited vii 

The  CoNSTiTunoNAii  Power  of  Congress  over  the  Territory  op 

THE  United  States 11 

I.  Of  the  Power  of  the  Government  to  Acquire  Territory 12 

A.  The  Treaty-Making  Power  as  a  Source  of  the  Power  to 

Acquire  Territory 16 

B.  The  War  Power  as  a  Source  of  the  Power  to  Acquire 

Territory 18 

C.  The  Power  to  Admit  New  States  into  the  Union  as  a 

Source  of  the  Power  to  Acquire  Territory 23 

D.  The  Power  to  Acquire  Territory  a  Necessary  Incident  of 

National  Sovereignty 28 

E.  The  Purposes  for  Which  Territory  may  be  Acquired 36 

II.  Of  the  Power  of  the  Government  over  Territory  When  Acquired ....     43 

A.  The  Status  of  the  Rights  of  the  Inhabitants  of  Acquired 

Territory  upon  its  Acquisition 43 

B.  Of  the  Source  from  Which  Congress  Derives  its  Power  to 

Govern  the  Territory  of  the  United  States 46 

C.  The  General  Mode  of  the  Exercise  of  the  Power  of  Con- 

gress      57 

D.  The  Source  of  the  Limitations  of  the  Power  of  Congress 

over  the  Territory  of  the  United  States 63 

E.  The  Limitations  of  the  Power  of  Congress  over  the  Terri- 

tory of  the  United  States 64 

F.  Appendix 102 

III.  Supplement.     The  Insular  Tariff  Cases 104 


(V) 


LIST  OF  CASES  CITED. 


PAGE. 

Adventure,  The  Ship,  1  Brock,  235 106 

Ainsa  v.  New  Mexico  &  Arizona  R.  R.,  175  U.  S.  76 45 

American  Insurance  Co.  v.  Canter,  1  Peters,  511 . .  .15-16-19-20-25-27-47 

-50-53-65-80-95 

American  Publishing  Co,  v.  Fisher,  166  U.  S.  464 91 

Anderson,  Wallace  v.,  5  Wheaton,  291 60 

Astiazaran  v.  Santa  Rita  Land  &  Mining  Co.,  148  U.  S.  80 45 

Baltimore,  Barron  v.,  7  Peters,  243 66 

Barron  v.  Baltimore,  7  Peters,  243 66 

Beason,  Davis  v.,  133  U.  S.  333 89 

BidweU,  De  Lima  v.,  21  Sup.  Ct.  Rep,,  743,  181  U.  S.  —  . .  .104-105-106 

-107-108-110-111-116 
BidweU,  Downes  v.,  21  Sup.  Ct.  Rep.,  770,  181  U.  S.  — .  .36-105-106-107 

-108-109-110-113-114-115-117-118-119-120 

Blake,  Loughborough  v.,  5  Wheaton,  317 40-70-72-92-113 

Boat  Eliza,  The,  2  Gall.,  4 106 

Boom  V.  Patterson,  98  U.  S.  406 33 

Bowlby,  Shively  v.,  152  U.  S.  1 27-36-79 

California  v.  Pacific  R.  R.  Co.,  127  U.  S.  1 46 

Callan  v.  Wilson,  127  U.  S.  540 87 

Campbell,  Central  Loan  &  Trust  Co.  v.,  173  U.  S.  84 92 

Canter,  American  Insurance  Co.  v.,  1  Peters,  511 . .  .15-16-19-20-25-27-47 

-50-53-65-80-95 

Capital  Traction  Co.  v.  Hof,  174  U.  S.  1 92 

Central  Loan  &  Trust  Co.  v.  Campbell,  173  U.  S.  84 92 

Chae  V.  United  States,  130  U.  S.  581 34 

Cherokee  Nation  v.  Kansas  Railway  Co.,  135  U.  S.  641 89 

Chicago,  Rock  Island,  etc.,  R.  R.  Co.  v.  McGlinn,  114  U.  S.  542 118 

Chinese  Exclusion  Case,  130  U.  S.  581 34 

Cohens  v.  Virginia,  6  Wheaton,  264 31 

Cook  V.  United  States,  138  U.  S.  157  67-90 

Cross  V.  Harrison,  16  Howard,  164 49-71-104-113 

Davis  V.  Beason,  133  U.  S.  333 89 

Dawson,  United  States  v.,  15  Howard,  467 67 

Delassus  v.  United  States,  9  Peters,  117 45 

De  Lima  v.  BidweU,  21  Sup.  Ct.  Rep.,  743,  181  U.  S.  —  . .  .  .104-105-106 

-107-108-110-111-116 

Dent  V.  Emmeger,  14  Wallace,  308 45 

Dooley  v.  United  States,  21  Sup.  Ct.  Rep.,  762, 181  U.  S.  — . .  104-106-118 
Downes  v.  BidweU,  21  Sup.  Ct.  Rep.,  770,  181  U.  S.  —  .  .36-105-106-107 

-108-109-110-113-114-115-117-118-119-120 
Dred  Scott  v.  Sandford,  19  Howard,  393.  .  .14-17-24-25-27-37^1-50-55 

-62-70-79-81-84-85-87-1 15-116 

(vii) 


Vlll  LIST    OF    CASES    CITED. 

PAGE : 

Eliza,  The  Boet,  2  Gall.,  4 106 

Emmeger,  Dent  v.,  14  Wallace,  308 45 

Ex  parte  Ortiz,  100  Fed.,  955 102 

Fisher,  American  Publishing  Co.  v.,  166  U.  S.  464 91 

Fleming  v.  Page,  9  Howard,  603 115 

Fong  V.  United  States,  149  U.  S.  698 35 

Foster  &  Elam  v.  Neilson,  2  Peters,  253 45 

Franklin,  Utter  v.,  172  U.  S.  423 59 

Goetze  &  Co.,  v.  United  States,  103  Fed.,  72 72-81-83-92-99-102 

-103-106 

Gratiot,  United  States  v.,  14  Peters,  526 49-112 

Guthrie,  United  States  v.,  17  Howard,  284 50 

Harrison,  Cross  v.,  16  Howard,  164 49-71-104-113 

Henkel,  Neeley  v.,  180  U.  S.  109 102-103 

Hennick,  Stoutenburgh  v.,  129  U.  S.  141  58-112 

Hill,  Maynard  v.,  125  U.  S.  190 80 

Hof,  Capital  Traction  Co.  v.,  174U.  S.  1 92 

Hopt  V.  Utah,  110  U.  S.  574 87-88 

Huckabee,  United  States,  Lyon  et  al.  v.,  16  Wallace,  414 19 

In  re  Ross,  140  U.  S.  453  .  ^ 17-69 

Jones,  United  States  v.,  109  U.  S.  513 33 

Kagama,  United  States  v.,  118  U.  S.  375 49 

Kahn,  Stewart  v.,  11  Wallace,  493 19 

Kansas  Railway  Co.,  Cherokee  Nation  v.,  135  U.  S.  641 89 

Kibbe,  Pollard's  Heirs  v.,  14  Peters,  353 .*. .     45 

Knox  V.  Lee,  12  Wallace,  457   12-31-33 

Lee,  Knox  v.,  12  Wallace,  457 19-31-33 

Legal  Tender  Cases,  12  Wallace,  457 19-31-33 

Leitensdorfer  v.  Webb,  20  Howard,  176 45 

Lockwood,  Territory  v.,  3  Wallace,  236 60 

Loughborough  v.  Blake,  5  Wheaton,  317 40-70-72-92-113 

Lucas,  Strother  v.,  12  Peters,  410 45 

Maryland,  McCulloch  v.,  4  Wheaton,  316 21-112 

Mayes,  Talton  v.,  163  U.  S.  376 100 

Maynard  v.  Hill,  125  U.  S.  190 80 

McAllister  v.  United  States,  141  U.  S.  174 95 

McCulloch  V.  Maryland,  4  ^Vheaton,  316 21-112 

McGlinn,  Chicago,  Rock  Island,  etc.,  R.  R.  Co.  v.,  114  U.  S.  542 118 

Mitchel  V.  United  States,  9  Peters,  711 45 

Mormon  Church  v.  United  States,  136  U.  S.  1.  .20-28-49-81-84-89-93-94 

Murphy  v.  Ramsey,  114  U.  S.  15 48-64-78-83 

National  Bank  v.  Yankton,  101  U.  S.  129 47-57-59-78-83 

Neeley  v.  Henkel,  180  U.  S.  109 102-103 

Neilson,  Foster  &  Elam  v.,  2  Peters,  253 45 

New  Mexico  &  Arizona  R.  R.,  Ainsa  v.,  175  U.  S.  76 45 

Nishimura  Ekiu  v.  United  States,  142  U.  S.  651     34 

Ortiz,  Ex  parte,  100  Fed.,  955 102 

Pacific  R.  R.  Co.,  California  v.,  127  U.  S.  1 46 


LIST  OF  CASES  CITED.  IX 

PAGE. 

Page,  Fleming  v.,  9  Howard,  603 .116 

Patterson,  Boom  v.,  98  U.  S.  406 33 

Percheman,  United  States  v.,  7  Peters,  353 44 

Pitot,  Sere  v.,  6  Cranch,  332 47 

Pollard's  Heirs  v.  Kibbe,  14  Peters,  353 45 

Ramsey,  Murphy  v.,  114  U.  S.  15 48-64-78-83 

Reynolds  v.  United  States,  98  U.  S.  154 67-88 

Robbins  v.  Shelby  County  Taxing  District,  120  U.  S.  489 59 

Ross,  In  re,  140  U.  S.  453 17-69 

Sandford,  Dred  Scott  v.,  19  Howard,  393...  14-17-24-25-27-37-41-50 

-55-62-70-79-81-84-85-87-115-116 

Santa  Rita  Land  &  Mining  Co.,  Astiazaran  v.,  148  U.  S.  80 45 

Scott  V.  Sandford,  19  Howard,  393. .  .14-17-24-25-27-37-41-50-55-62-70 

79-81-84-85-87-115-116 

Sere  v.  Pitot,  6  Cranch,  332 47 

Shelby  County  Taxing  District,  Robbins  v.,  120  U.  S.  489 59 

Ship  Adventure,  The,  1  Brock,  235 106 

Shively  v.  Bowlby,  152  U.  S.  1  27-36-79 

Snow  V.  United  States,  18  Wallace,  317 61 

Soulard  v.  United  States,  4  Peters,  511 43 

Southern  Pacific  R.  R.,  Walker  v.,  165  U.  S.  693 90 

SpringviUe  v.  Thomas,  166  U.  S.  707 91 

Stewart  v.  Kahn,  11  Wallace,  493 19 

Stoutenburgh  v.  Hennick,  129  U.  S.  141 68-112 

Strother  v.  Lucas,  12  Peters,  410 45 

Taber  v.  United  States,  1  Story,  1 106 

Talton  V.Mayes,  163  U.S.  376 100 

Tameling  v.  United  States,  93  U.  S.  644 45 

Territory  v.  Lockwood,  3  Wallace,  236 60 

Thomas,  SpringviUe  v.,  166  U.  S.  707 91 

Thomson  v.  Utah,  170  U.  S.  343 91 

United  States,  Chae  v.,  130  U.  S.  581 34 

United  States,  Cook  v.,  138  U.  S.  157 67-90 

United  States  v.  Dawson,  15  Howard,  467 67 

United  States,  Delassus  v.,  9  Peters,  117 46 

United  States,  Dooley  v.,  21  Sup.  Ct.  Rep.,  762,  181  U.  S.  — , . . .  104-106 

-118 

United  States,  Fong  v.,  149  U.  S.  698 35 

United  States,  Goetze  &  Co.  v.,  103  Fed.,  72 . .  72-81-83-92-99-102-103-106 

United  States  v.  Gratiot,  14  Peters,  526 49-112 

United  States  v.  Guthrie,  17  Howard,  284 50 

United  States  v.  Jones,  109  U.  S.  513 33 

United  States  v.  Kagama,  118  U.  S.  375 .*. 49 

United  States,  Lyon  et  al.  v.,  Huckabee,  16  Wallace,  414 19 

United  States,  McAUister  v.,  141  U.  S.  174  95 

United  States,  Mitchel  v.,  9  Peters,  711 45 

United  States,  Mormon  Church  v.,  136  U.  S.  1    .  .  .20-28-49-81-84-89-93-94 
United  States,  Nishimura  Ekiu  v.,  142  U.  S.  651   34 


X  LIST    OF    CASES    CITED. 

FAOE. 

United  States  v.  Percheman,  7  Peters,  51 44 

United  States,  Reynolds  v.,  98U.  S.  154  67-88 

UnitedStates,  Snow  v.,  18  WaUace,  317 61 

United  States  v.  Soulard,  4  Peters,  511 43 

United  States,  Taber  v.,  1  Story,  1 106 

United  States,  Tameling  v.,  93  U.  S.  644  45 

Utah,  Hopt  v.,  110  U.  S.  574 87-88 

Utah,  Thomson  v.,  170  U.  S.  343 91 

Utter  V.  Franklin,  172  U.  S.  423 59 

Virginia,  Cohens  v.,  6  Wheaton,  264 31 

Walker  V.  Southern  Pacific  R.  R.,  165  U.  S.  593 90 

Wallace  v.  Anderson,  5  Wheaton,  291 60 

Webb,  Leitensdorfer  v.,  20  Howard,  176 45 

Wilson,  Callan  v.,  127  U.  S.  540 87 

Yankton,  National  Bank  v.,  101  U.  S.  129 47-57-59-78-83 


THE  CONSTITUTIONAL  POWER  OF  CONGRESS 

OVER  THE  TERRITORY  OF  THE  UNITED 

STATES. 

"It  is  impossible,"  says  Mr.  Von  Hoist  in  his  great  work 
on  the  ''Constitutional  History  of  the  United  States"  (Vol. 
I,  p.  70),  ''to  even  hastily  turn  over  the  debates  of  Congress 
without  being  struck  by  a  very  important  circumstance  to 
be  found  in  the  history  of  no  other  constitutional  state.  Up 
to  the  year  1861  there  were  but  few  important  laws  of  a 
general  character  proposed  which,  while  under  discussion, 
were  not  attacked  as  unconstitutional  by  the  minority.  The 
arguments  are  scarcely  ever  confined  to  the  worth  or  worth- 
lessness  of  the  law  itself.  The  opposition  in  an  extraordin- 
arily large  number  of  instances  starts  out  with  the  question 
of  constitutionality.  The  expediency  or  inexpediency  of 
the  law  is  a  secondary  question  and  is  touched  upon  only  as 
a  confirmation  of  the  first  decisive  objection." 

This  "American  Doctrine  of  Constitutional  Law"  con- 
stitutes the  distinguishing  feature  in  many  matters  of  vital 
governmental  concern  between  this  country  and  the  other 
nations  of  the  globe.  Powers  which  there  are  unquestioned 
when  exercised  by  the  sovereign  power,  here  have  first  to 
meet  the  test  of  conformity  to  a  fixed  document.  This  fact, 
to  which  Americans  have  become  so  accustomed  as  no 
longer  to  regard  it  surprising,  is  strikingly  illustrated  in 
relation  to  the  acquisition  of  territory  by  the  government  of 
the  United  States.  The  expansion  of  power  and  influence 
by  the  extension  of  boundaries,  so  eagerly  sought  after  by 
most  of  the  powers  of  the  world,  with  us  has  repeatedly  been 
resisted  on  the  ground  of  its  alleged  infringement  of  the 
fundamental  law  rather  than  because  of  its  inconsistency 
with  public  policy.  Recent  events,  which  have  renewed  this 
discussion  and  given  it  commanding  interest  in  the  public 
mind,  have  again  emphasized  this  peculiarity  of  American 
institutions.  The  constitutional  relation  of  the  United 
States  to  her  possessions  is  more  frequently  and  more  earn- 
estly discussed  than  the  question  as  to  what  is  her  best  policy 
with  reference  to  their  control. 

(II) 


12  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

To  consider  this  constitutional  relation  between  the  gov- 
ernment of  our  country  and  her  territory  is  the  purpose  of 
this  paper.  In  the  consideration  of  this  subject  our  study 
will  be  confined  almost  wholly  to  the  decisions  of  the  United 
States  Supreme  Court  as  being  the  only  really  authoritative 
deliverances  on  the  subject,  and  as  indicating  with  most 
exactness  the  attitude  which  that  Court  would  be  most  likely 
to  assume  in  the  decision  of  such  questions  as  will  probably 
arise  from  this  source.  It  is  not  our  purpose  to  present  a 
digest  of  the  cases  which  have  been  before  the  Court,  but  to 
discover,  so  far  as  we  may  be  able,  the  basic  principles  upon 
which  the  Court  has  proceeded  in  the  decision  of  such  cases. 
In  this  way,  better  than  in  any  other  we  believe,  conclusions 
may  be  reached  from  which  it  will  be  possible  in  some  mea- 
sure to  anticipate  the  future  decisions  of  the  Court  upon  the 
question  of  the  constitutional  power  of  the  Government  over 
the  territory  of  the  United  States. 

What  authority  is  given  by  the  Constitution  to  the  general 
Government  to  acquire  territory?  What  authority  to  gov- 
ern it  when  acquired  ?  What  limitations  are  placed  upon  its 
acquisition  or  government  ?  Such  are  the  questions  to  which 
we  shall  seek  an  answer  in  the  reports.  The  inquiry  is  not 
into  those  principles  of  public  law  common  to  all  nations, 
but  rather  into  the  questions  peculiar  to  our  own  Govern- 
ment, as  to  its  right  with  respect  to  its  own  people — not  to 
outsiders — in  other  words,  its  right  under  the  Constitution 
to  acquire  and  govern  territory  other  than  that  within  its 
boundaries  at  the  time  of  the  adoption  of  the  Constitution. 

And  in  the  first  place 

I.  Of  THE  Power  of  the  Government  to  Acquire  Ter- 
ritory. 

We  do  not  purpose  here  to  examine  those  general  grounds 
of  title  which,  under  the  law  of  nations,  justify  the  expansion 
of  territory,  viz.,  cession,  conquest,  discovery,  occupancy  and 
so  forth,  sources  of  title  of  which  the  publicist  treats.  Prac- 
tically these  all  reduce  to  the  doctrine  of  Rob  Roy — 

"The  ancient  rule,  the  good  old  plan, 
That  those  shall  take  who  have  the  power. 
And  those  shall  keep  who  can" — 


I 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         1 3 

and  in  these  original  sources  of  title  the  United  States  shares 
with  the  other  nations.  But  we  now  turn  to  the  Constitution 
to  find  in  it  the  delegation  to  Congress  of  the  power  to  ac- 
quire territory. 

It  may  be  premised  first  of  all  that  there  is  no  clause  in 
the  Constitution  expressly  allowing  the  acquisition  of  terri- 
tory. The  clause  more  particularly  dealing  with  the  terri- 
tory of  the  United  States  than  any  other  is  the  third  section 
of  Article  IV.  ''New  States  may  be  admitted  by  the  Con- 
gress into  this  Union;  but  no  new  States  shall  be  formed 
or  erected  within  the  jurisdiction  of  any  other  State;  nor 
any  State  be  formed  by  the  junction  of  two  or  more  States, 
or  parts  of  States,  without  the  consent  of  the  legislatures  of 
the  States  concerned  as  well  as  of  the  Congress.  The  Con- 
gress shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  prop- 
erty belonging  to  the  United  States;  and  nothing  in  this 
Constitution  shall  be  so  construed  as  to  prejudice  any  claims 
of  the  United  States  or  of  any  particular  State."  With 
regard  to  this  Article,  its  scope  and  limitation,  it  will  be 
necessary  to  inquire  more  in  detail  in  a  subsequent  part  of 
this  paper,  but  at  this  point  it  is  sufficient  to  notice  that 
while  the  power  "to  dispose  of  the  territory  of  the  United 
States"  is  expressly  given,  no  power  to  make  acquisitions  is 
conferred.  In  this  one  section,  which  on  its  face  seems  to 
deal  specifically  with  the  subject  of  the  territory  of  the 
United  States,  provision  is  made  only  for  the  control  and 
management  of  territory,  not  for  its  acquisition. 

However,  the  absence  from  the  Constitution  of  an  ex- 
press grant  of  so  important  a  power  as  this  by  no  means 
shows  that  the  framers  of  the  Constitution  imagined  it  did 
not  exist.  This  part  of  the  Constitution  "was  introduced 
into  the  Constitution  on  the  motion  of  Mr.  Gouverneur 
Morris.  In  1803  he  was  appealed  to  for  information  in 
regard  to  its  meaning.  He  answered:  'I  am  very  certain 
I  had  it  not  in  contemplation  to  insert  a  decree  de  coercendo 
imperio  in  the  Constitution  of  America.  ...  I  knew 
then,  as  well  as  I  do  now,  that  all  North  America  must  at 
length  be  annexed  to  us.  Happy  indeed,  if  the  lust  for 
dominion  stop  here.  It  would  therefore  have  been  perfectly 


14  THE    CONSTITUTIONAL    POWER    OF    CONGRESS 

Utopian  to  oppose  a  paper  restriction  to  the  violence  of 
popular  sentiment  in  a  popular  government.'  "  (Dred  Scott 
V.  Sandford,  19  Howard,  507,  1856,  quoting  3  Mor.  Writ. 
185.)  But  since  no  express  authorization  was  inserted  in 
the  Constitution,  this  power  must  be  found  among  the  so- 
called  implied  powers  of  Congress,  and  it  is  there  that  the 
authorities  have  placed  it. 

The  first  acquisition  of  territory,  the  great  Louisiana 
purchase,  came  during  President  Jefferson's  first  term.  "As 
a  strict  constructionist  he  could  not,  and  for  a  while  he  did 
not,  consider  the  purchase  of  foreign  territory  as  a  consti- 
tutional act.  But,  when  he  thought  of  the  evils  that  would 
follow  if  Louisiana  remained  with  France,  and  of  the  bless- 
ings that  would  follow  if  Louisiana  came  to  the  United 
States,  his  common  sense  got  the  better  of  his  narrow  politi- 
cal scruples,  and  he  soon  found  a  way  to  escape.  He 
would  accept  the  treaty  [of  purchase],  summon  Congress, 
urge  the  House  and  Senate  to  perfect  the  purchase,  and 
trust  to  the  Constitution  being  mended  so  as  to  make  the 
purchase  legal."  (McMaster's  "History  of  the  People  of 
the  United  States,"  Vol.  II,  p.  628.)  But  the  Constitution 
was  not  "mended,"  though  the  United  States  continued  to 
hold  Louisiana,  and,  so  far  as  judicial  decision  was  con- 
cerned, it  was  not  until  after  a  second  purchase,  that  of 
Florida  in  181 9,  that  the  question  arose  in  the  United  States 
Supreme  Court. 

Professor  McMaster's  suggestion  of  the  contest  between 
President  Jefferson's  common  sense  and  his  political 
scruples,  concurs  with  Mr.  Gouverneur  Morris's  idea  that 
restrictions  cannot  be  regarded  omnipotent.  Notwithstand- 
ing the  power  of  amendment  given  in  the  Constitution,  a 
tendency  certainly  exists  in  Constitutional  law  to  give  to 
the  cases  a  decision  statesmanlike  rather  than  lawyerlike — 
to  bend  rules  of  construction,  to  deflect  from  former  de- 
cisions, and  to  respect  the  opinion  of  the  legislature  in  large 
measure,  where  questions  of  vital  national  concern  are  at 
stake.  Questions  of  this  kind  are  almost  invariably  involved 
in  the  acquisition  of  large  tracts  of  territory,  and  it  is  not 
surprising  that  upon  the  arising  of  the  first  case  the  Court 
readily  finds  primary  powers  expressly  vested  in  the  Na- 


OVER   THE    TERRITORY    OF    THE    UNITED    STATES.  1 5 

tional  Government  to  which  it  can  link  the  secondary  or 
implied  power  of  the  acquisition  of  territory. 

The  first  case  to  deal  directly  with  this  question  is  a  lead- 
ing case — The  American  Insurance  Co.  v.  Canter,  i  Peters, 
511,  1828.  It  arose  in  regard  to  the  Florida  purchase. 
Congress  had  passed  an  act  establishing  a  territorial  govern- 
ment, providing  that  the  Territorial  legislature  should  have 
legislative  powers  over  "all  rightful  objects  of  legislation, 
but  no  law  should  be  valid  which  was  inconsistent  with  the 
laws  and  Constitution  of  the  United  States."  Under  the 
power  thus  conferred  the  Legislature  of  Florida  passed  an 
act  erecting  a  court  to  try  cases  of  salvage.  And  the  ques- 
tion was  whether  such  power  could  be  delegated  to  the  Ter- 
ritorial legislature  in  view  of  the  clauses  in  the  Constitution 
that  ''the  judicial  power"  of  the  United  States  ''extends 
to  all  cases  of  admiralty  and  maritime  jurisdiction;"  and 
that  "the  judicial  power  of  the  United  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish,"  it 
being  argued  that  in  virtue  of  these  restrictions  Congress 
alone  could  establish  such  a  court.  But  the  Supreme  Court 
held  that  the  court  created  by  the  act  of  the  Territorial 
legislature  was  not  a  court  of  the  United  States,  but  a  Ter- 
ritorial court  erected  in  virtue  of  the  power  of  Congress 
over  the  territory  of  the  United  States.  TIms  brought  the 
Court  to  the  consideration  of  the  power  to  acquire  territory. 
As  to  this  Mr.  Justice  Johnson  had  said  in  the  Circuit  Court : 
"There  is  no  express  provision  whatever  made  in  the  Con- 
stitution for  the  acquisition  or  government  of  territories 
beyond  those  limits  [that  is,  existing  at  the  time  of  the 
adoption  of  the  Constitution] .  The  right,  therefore,  of  ac- 
quiring territory  is  altogether  incidental  to  the  treaty-mak- 
ing power,  and  perhaps  to  the  power  of  admitting  new 
States  into  the  Union."  And  Chief  Justice  Marshall,  deliv- 
ering the  opinion  of  the  Supreme  Court  on  appeal,  says: 
"The  Constitution  confers  absolutely  on  the  Government 
of  the  Union  the  power  of  making  war,  and  of  making 
treaties ;  consequently,  that  Government  possesses  the  power 
of  acquiring  territory,  either  by  conquest  or  by  treaty." 
These  three  great  powers — the  war  power,  the  treaty-mak- 


l6  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

ing  power  and  the  power  to  admit  new  States  into  the 
Union — are  the  three  express  powers  to  which  most  fre- 
quently in  the  decisions  is  Hnked  the  power  to  acquire  terri- 
tory. One  other  possible  source  we  wish  to  consider  later, 
but  at  present  a  more  particular  inquiry  into  these  sources 
of  the  power  is  desirable. 

A.  The  Treaty-Making  Power  as  a  Source  of  the  Power 
to  Acquire  Territory. 

This  decision  (American  Insurance  Co.  v.  Canter)  has 
been  affirmed  a  number  of  times  and  is  frequently  cited. 
We  have  the  power  to  acquire  territory  referred  time  after 
time  to  the  war  or  treaty-making  power,  but  we  find  no 
explanation  as  to  how  acquiring  territory  is  a  means  to 
assist  in  concluding  a  treaty  or  in  carrying  on  war.  The 
clause  in  the  Constitution  granting  the  implied  powers, 
reads :  "Congress  shall  have  power  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers."  But  how,  it  may  be  asked,  does 
the  power  to  acquire  territory  aid  the  United  States  in  exer- 
cising its  power  to  make  a  treaty?  Surely,  a  nation  with 
which  our  Government  might  be  treating  would  be  more 
ready  to  keep  its  territory  to  itself  at  the  time  it  makes  the 
treaty,  than  Jp  surrender  it.  The  demand  for  the  sur- 
render of  territory  frequently  constitutes  an  impediment  to 
the  ratification  of  a  treaty.  Instead  of  assigning  the  power 
to  acquire  territory  to  this  source  it  is  much  more  logical 
to  regard  the  treaty-making  power  as  auxiliary  to  it,  and  to 
hold  that  concluding  a  treaty  is  the  means  "necessary  and 
proper  for  carrying  into  execution"  the  power  to  acquire 
territory. 

If  the  treaty-making  power  can  accomplish  this  it  allows, 
by  a  parity  of  reasoning,  the  United  States  to  do  anything 
which  may  be  effected  by  treaty.  A  guardian  may  con- 
tract for  his  ward,  but  his  power  to  do  so  is  strictly  limited. 
Simply  because  he  may  stand  for  his  ward  in  the  eye  of 
the  law,  does  not  confer  on  him  the  power  to  effect  for  his 
ward  anything  which  may  be  the  subject  matter  of  a  con- 
tract.    So  in  a  similar  manner  it  seems  only  reasonable  to 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         1/ 

regard  the  power  of  the  United  States,  as  conferred  by  the 
treaty-making  power,  limited  to  such  objects  as  are  allowed 
by  the  Constitution.  It  will  hardly  be  contended  that  the 
right  to  make  a  treaty  extends  so  far  as  to  allow  such  a 
treaty  as  would  give  a  preference  to  the  ports  of  Pennsyl- 
vania over  those  of  New  York.  And  yet  that  might  well 
be  the  subject  matter  of  a  treaty  except  for  the  restriction 
in  the  Federal  Constitution.  To  be  sure  no  restriction  upon 
the  acquisition  of  territory  is  expressed,  but  if  this  power 
does  not  exist  apart  from  the  treaty-making  power  it  is 
difficult  to  regard  it  as  a  means  to  facilitate  the  exercise 
of  that  power,  and  not  rather  as  a  result  of  the  exercise 
of  the  treaty-making  power.  Thus  Jefferson  writes  in 
regard  to  the  Louisiana  purchase:  "Our  peculiar  security 
is  in  the  possession  of  a  written  Constitution.  Let  us  not 
make  it  blank  paper  by  construction.  I  say  the  same  as  to 
the  opinion  of  those  who  consider  the  grant  of  the  treaty- 
making  power  boundless.  If  it  is,  then  we  have  no  Constitu- 
tion. If  it  has  bounds,  they  can  be  no  others  than  the  defini- 
tions of  the  powers  which  that  instrument  gives.  It  specifies 
and  delineates  the  operations  permitted  to  the  Federal  Gov- 
ernment, and  gives  the  powers  necessary  to  carry  them  into 
execution."  Quoted  in  Dred  Scott  v.  Sandford,  19 
Howard,  512. 

No  doubt  the  treaty-making  power  is  of  broad  scope  and 
includes  a  vast  range  of  objects.  As  the  Court  says  in 
In  re  Ross,  140  U.  S.  453,  189 1,  at  page  463 :  "The  treaty- 
making  power  vested  in  our  government  extends  to  all 
proper  subjects  of  negotiation  with  foreign  governments." 
But  the  criticism  here  made  is  that  under  the  American 
Constitution  there  are  some  "subjects  of  negotiation  with 
foreign  governments"  which  are  specifically  denied  to  the 
Government  of  the  United  States;  others  which,  not  being 
expressly  given  or  implied  from  other  powers,  cannot  be 
implied  from  the  treaty-making  power  alone  unless  they  can 
be  shown  to  be  necessary  and  proper  to  carry  into  execu- 
tion this  power.  One  such  subject  has  been  illustrated 
above,  viz.,  the  absence  of  power  in  the  Federal  Govern- 
ment to  prefer  the  ports  of  one  State  over  those  of  another ; 
it  is  clear  that  the  mere  grant  of  the  right  to  make  treaties 


1 8  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

cannot  override  this  restriction  and  give  such  power  to  the 
general  Government.  So  it  is  claimed  that  if  the  right  to 
acquire  territory  is  not  in  existence  apart  from  the  right  to 
make  treaties,  it  is  illogical  to  regard  it  as  a  power  implied 
from  that  express  power,  since  it  is  not  ''necessary  and 
proper"  to  aid  in  making  a  treaty,  but  the  treaty  is  ''neces- 
sary and  proper"  to  acquire  the  territory.  In  other  words, 
to  use  a  homely  phrase,  such  a  construction  "puts  the  cart 
before  the  horse." 

B.  The  War  Power  as  a  Source  of  the  Power  to  Acquire 
Territory. 

A  similar  criticism  may  be  made  of  the  construction 
which  refers  to  the  war  power  as  the  express  power  in  aid 
of  which  the  power  to  acquire  territory  is  said  to  exist. 
It  is  not  denied  that  very  often  territory  might  be  of  prime 
importance  in  facilitating  military  operations,  in  the  estab- 
lishment of  forts,  arsenals,  naval  stations  and  so  forth.  In 
all  these  cases  it  is  strictly  logical  to  regard  the  acquisition 
of  territory  a  means  to  aid  in  the  exercise  of  the  war  power ; 
but  to  go  further  and  claim  that  the  general  conquest  of  ter- 
ritory and  its  retention  by  means  of  the  exercise  of  the  war 
power  is  in  aid  of  this  power  meets  with  the  same  objection 
that  we  have  stated  above.  It  is  the  war  power  that  is 
auxiliary  to  the  power  to  acquire  territory.  It  is  that 
power  which  is  "necessary  and  proper"  to  effectuate  the 
other.  If  an  implied  power  were  one  which  were  merely 
linked  with  some  express  power  either  as  a  means  to  its 
accomplishment  or  as  a  result  of  its  exercise,  our  conclu- 
sion would  be  quite  different.  But  under  the  clause  grant- 
ing the  implied  powers  only  such  are  granted  as  "are  neces- 
sary and  proper  to  carry  into  effect"  the  express  powers; 
that  is,  only  such  as  are  auxiliary,  as  aid  in  the  accomplish- 
ment of  the  others,  not  such  as  are  effectuated  by  the  others. 
In  this  general  doctrine  of  the  "implied  powers,"  as  we  find 
it  illustrated  in  numerous  cases,  this  is  the  construction  of 
the  clause  adhered  to.  And  in  deriving  the  implied  powers 
of  Congress  from  the  various  expressed  ones,  it  is  shown 
that   the   former   constitute   the   means   to   an   end — the 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         1 9 

express  power  being  the  end.  The  construction  of  the  war 
or  treaty-making  power,  to  render  it  the  source  of  the  power 
to  acquire  territory,  reverses  the  natural  construction  and 
makes  the  implied  power  the  end  and  the  express  power  the 
means.  It  were  easy  to  enumerate  cases  illustrating  the 
usual  application  of  the  doctrine  of  the  implied  powers. 
Notable  instances  will  suggest  themselves  to  anyone.  The 
Legal  Tender  Cases  well  illustrate  the  point  for  which  we 
are  contending  and  are  typical  of  the  uniform  attitude  of  the 
Court  towards  the  theory  of  the  implied  powers. 

But  it  is  freely  admitted  that  in  the  decisions  we  find 
cases  in  which  the  power  to  acquire  territory  is  referred  to 
one  or  other  or  both  of  the  two  great  powers  above  men- 
tioned. We  have  already  referred  to  the  American  Insur- 
ance Co.  V.  Canter,  supra.  This  case  has  been  repeatedly 
quoted,  cited  and  discussed,  and  yet  its  statement  as  to  the 
source  of  this  power  has  never  been  dissented  from.  On  the 
other  hand  we  find  it  frequently  reiterated. 

Thus  in  Stewart  v.  Kahn,  ii  Wallace,  493,  1870,  at  page 
507,  the  Court  says  by  way  of  illustration :  "What  is  clearly 
implied  in  a  written  instrument,  is  as  effectual  as  what  is 
expressed.  The  war  power  and  the  treaty-making  power, 
each  carries  with  it  authority  to  acquire  territory.  Louisi- 
ana, Florida  and  Alaska  were  acquired  under  the  latter,  and 
California  under  both."  And  the  American  Insurance  Co. 
V.  Canter,  supra,  is  cited  as  authority.  It  will  be  noticed 
that  no  analysis  whatever  is  given  to  show  the  relation 
between  these  powers.  What  is  said,  too,  is  quite  apart 
from  the  point  decided  in  the  case — this  was  as  to  the  power 
of  Congress  to  regulate  the  period  of  the  limitation  of 
actions  in  consequence  of  the  war. 

So  also  in  United  States,  Lyon  et  ol.  v.  Huckabee,  16 
Wallace,  414,  1872,  at  page  434,  similar  language  occurs: 
"Power  to  acquire  territory  either  by  conquest  or  treaty  is 
vested  by  the  Constitution  in  the  United  States."  Here 
again  we  find  no  explanation  as  to  how  this  power  results — 
in  fact  the  language  used  strongly  supports  the  position  we 
have  taken.  "Power  to  acquire,"  says  the  Court,  "by  con- 
quest or  treaty,"  that  is,  the  conquest  or  treaty  is  the  means 
to   the   acquisition.     How,    then,    can   the   acquisition   be 


20  THE    CONSTITUTIONAL   POWER   OF   CONGRESS 

either  necessary  or  proper  to  the  carrying  on  of  war  or  the 
negotiating  of  treaties?  The  language  is  easily  intelligible 
and  falls  well  in  line  with  constitutional  construction,  if  we 
understand  the  Court  to  mean  that  the  power  to  acquire  ter- 
ritory is  vested  in  the  Government  of  the  United  States 
extra  these  powers,  but  that  they  are  the  means  by  which 
it  may  be  effectuated.  This  is  a  natural  construction  of  the 
words  of  the  Court,  but  what  is  said  follows  closely  the 
language  of  our  leading  case,  American  Insurance  Co.  v. 
Canter  J  which  it  cites  as  authority. 

Again,  in  a  more  recent  case.  Mormon  Church  v.  United 
States,  136  U.  S.  i,  1890,  at  page  42,  Mr.  Justice  Bradley, 
delivering  the  opinion  of  the  Court,  says  with  reference  to  the 
power  of  Congress  to  legislate  for  the  Territory  of  Utah  in 
regard  to  the  Mormons :  'Tt  would  be  absurd  to  hold  that  the 
United  States  has  power  to  acquire  territory,  and  no  power 
to  govern  it  when  acquired.  The  power  to  acquire  territory, 
other  than  the  territory  northwest  of  the  Ohio  River  (which 
belonged  to  the  United  States  at  the  adoption  of  the  Consti- 
tution), is  derived  from  the  treaty-making  power  and  the 
power  to  declare  and  carry  on  war.'*  This  reads  very  much 
like  the  former  cases  and  seems  to  be  a  mere  repetition  of 
their  language;  but  Mr.  Justice  Bradley  goes  on  to  say — 
and  this  is  the  significant  part  of  his  opinion — ''The  inci- 
dents of  these  powers  are  those  of  national  sovereignty,  and 
belong  to  all  independent  governments.  The  power  to 
make  acquisitions  of  territory  by  conquest,  by  treaty  and  by 
cession  is  an  incident  of  national  sovereignty."  Now,  it 
seems  quite  accurate  to  regard  the  acquisition  of  territory 
an  "incident"  of  the  war  or  treaty-making  power;  but  this 
is  far  different  from  regarding  it  a  means  "necessary  and 
proper  to  carry  into  effect"  these  express  powers ;  and  in  the 
last  sentence  we  find  the  same  language  as  in  the  decision 
cited  just  before  this  case,  that  it  is  "by  war,"  ''by  treaty," 
"by  cession,"  that  territory  is  acquired,  and  it  is  worthy  of 
note  that  "cession"  is  put  with  "war"  and  "treaty,"  indicat- 
ing that  they  are  all  equally  means  to  the  attainment  of  the 
desired  end,  the  acquisition  of  territory.  We  shall  have 
occasion  later  to  refer  more  at  length  to  this  language  of 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         21 

the  Court ;  at  present  we  cite  it  for  its  bearing  upon  the  par- 
ticular point  we  are  discussing. 

Other  cases  might  be  cited  to  the  same  effect.  It  will  be 
noticed  that  in  none  of  them  is  a  careful  analysis  attempted , 
to  explain  how  the  power  to  acquire  territory  is  derived 
from  these  two  great  powers.  It  is,  to  use  the  language 
just  above  quoted,  an  "incident"  of  war  or  treaty,  but  in  no 
case  is  it  shown  to  be  a  means  necessary  or  proper  to  carry 
into  effect  either  of  those  powers.  It  is  only  in  this  latter 
sense  that  the  famous  test  laid  down  by  Chief  Justice  Mar- 
shall justifies  us  in  deriving  these  implied  powers  from  those 
expressly  conferred.  He  says  in  the  leading  case  on  the 
"Implied  Powers" —  the  case  of  McCulloch  v.  Maryland, 
4  Wheaton,  316,  18 19,  at  page  421 :  "Let  the  end  be  legiti- 
mate, let  it  be  within  the  scope  of  the  Constitution,  and  all 
means  which  are  appropriate,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but  consist  with  the 
letter  and  spirit  of  the  Constitution,  are  constitutional." 

This,  then,  is  the  contention  we  make,  in  regard  to  this 
theory  which  annexes  the  power  to  acquire  territory  to  the 
war  or  treaty-making  power,  that  it  makes  the  former  the 
"end"  and  the  latter  the  "means"  and  thus  gives  us  a  con- 
struction which  is  the  reverse  of  that  authorized  by  the  rule 
just  cited,  which  rule  admirably  expresses  the  logical  view 
in  regard  to  implying  powers  in  aid  of  those  expressly  con- 
ferred. 

In  the  next  place,  in  none  of  the  cases  cited  is  the  source 
of  the  power  to  acquire  territory  a  matter  of  paramount 
necessity  to  decide.  The  question  arises,  incidentally, 
where  it  arises  at  all — in  some  the  language  applies  merely 
by  way  of  illustration.  It  is  not  the  immediate  point  for 
decision,  and  the  possession  of  the  territory  for  years  before 
the  case  comes  before  the  Court  renders  a  discussion  of  the 
exact  source  of  the  power  by  which  it  was  acquired  unneces- 
sary and  unimportant. 

And  yet,  though  on  both  sides  the  right  to  acquire  terri- 
tory might  be  fully  admitted,  it  is  possible  that  it  might 
become  a  matter  of  serious  and  vital  moment  to  determine 
the  precise  source  from  which  this  power  is  derived.  For 
example,  if  it  could  be  shown  that  the  power  to  acquire  ter- 


22  THE   CONSTITUTIONAL   POWER   OF   CONGRESS 

ritory  is  a  means  to  carry  into  execution  only  one  power 
expressly  vested  by  the  Constitution  in  Congress,  namely,  the 
power  to  admit  new  States  into  the  Union,  it  would  be  at 
once  apparent  that  only  with  this  object  in  view  could  the 
United  States  acquire  territory,  and  only  as  preliminary  to 
Statehood  could  it  hold  its  acquisitions  in  the  subject  condi- 
tion of  Territories.  On  the  other  hand,  if  it  should  be  held 
that  the  power,  however  it  may  spring  from  this  source,  may 
also  be  derived  elsewhere,  in  such  case  this  difficulty  would 
be  obviated  and  it  would  remain  an  open  question,  so  far  as 
this  objection  is  concerned,  whether  the  United  States  Gov- 
ernment has  power  to  acquire  territory  for  the  purpose  of 
holding  it  in  the  permanent  condition  of  subject  territory, 
in  other  words,  of  establishing  colonies. 

In  the  light  of  recent  historical  events  and  the  questions 
thus  arising,  it  appears  at  once  that  the  question  as  to  the 
source  of  the  power  in  the  United  States  Government  by 
which  it  acquires  territory  may  become  of  vast  importance. 
In  none  of  the  cases  to  which  we  have  been  able  to  refer 
has  the  question  assumed  such  shape  as  to  be  contested.  In 
view,  therefore,  of  the  meagre  language  of  the  Court  and  the 
fact  that  the  decision  of  the  cases  did  not  make  necessary 
a  precise  solution  of  the  question,  we  have  felt  justified  in 
inquiring  into  the  correctness  of  the  position  that  the  war 
and  the  treaty-making  powers  are  sources  of  the  power 
to  acquire  territory. 

Our  conclusions,  then,  on  this  branch  of  our  subject  are : 
that  the  language  of  the  cases  has  repeatedly  assigned  the 
power  to  acquire  territory,  as  a  subordinate  power  to  the 
war  and  treaty-making  powers  as  primary  powers ;  that  this 
construction  of  the  Constitution  is  dissimilar  to  that  or- 
dinarily followed  in  regard  to  the  implied  powers  of  Con- 
gress, and  is  at  variance  with  the  famous  test  laid  down  by 
Mr.  Chief  Justice  Marshall ;  that  the  language  of  the  cases  is 
hardly  conclusive,  inasmuch  as  this  precise  question  was  not 
in  issue ;  that  the  question  is  not  merely  of  academic  interest, 
but  may  prove  of  importance  in  respect  to  the  scope  of  the 
power  of  the  United  States  Government  over  acquired  ter- 
ritory. 


OVER   THE   TERRITORY   OF   THE    UNITED   STATES.         23 

C.  The  Power  to  Admit  New  States  into  the  Union  as  a 
Source  of  the  Power  to  Acquire  Territory. 

We  pass  now  to  consider  the  third  of  the  three  express 
powers  ordinarily  assigned  as  the  source  of  the  power  to 
acquire  territory,  namely,  the  power  to  admit  new  States 
into  the  Union.  This  power  is  expressly  conferred :  Article 
IV,  section  3  of  the  Constitution  reads :  "New  States  may 
be  admitted  by  the  Congress  into  this  Union,"  and  then 
follow  various  limitations  as  to  cases  where  it  might  be 
desired  to  exercise  this  power  over  territory  already  erected 
into  States.  But  the  power  is  clearly  given,  and,  as  to  ter- 
ritory not  already  erected  into  States,  no  restriction  is  made, 
no  limitation  is  expressed. 

And  yet  strenuous  objections  have  been  made  to  its  appli- 
cation to  any  territory  except  that  actually  in  the  possession 
of  the  United  States  at  the  time  of  the  adoption  of  the  Con- 
stitution. The  treaty  for  the  purchase  of  Louisiana  con- 
tained a  stipulation  for  the  incorporation  of  the  inhabitants 
into  the  Union  as  soon  as  might  be  possible  and  their  enjoy- 
ment of  all  the  rights,  advantages  and  immunities  of  citizens 
of  the  United  States.  It  was  not  long  until  it  became 
apparent  that  the  purpose  of  the  administration  was  the 
erection  of  new  States  out  of  the  territory  so  acquired. 
This  was  the  first  move  towards  the  enlargement  of  the 
country  since  the  treaty  of  peace  with  Great  Britain,  and 
occurred,  of  course,  when  the  Republic  was  still  young. 
When  the  treaty  was  before  the  Senate  for  ratification,  it 
met  with  bitter  opposition  from  distinguished  Senators 
(see,  for  example,  the  speech  of  Senator  Pickering,  of  Mas- 
sachusetts, "Deb.  of  Cong.,"  Ill,  p.  13.  The  speech 
of  Mr.  Josiah  Quincy,  of  Massachusetts,  delivered 
in  the  House  of  Representatives,  January  14,  181 1,  is 
also  worthy  of  reference,  "American  Orations,"  Vol.  I, 
p.  180).  The  nature  of  the  argument  which  bore 
most  closely  upon  the  constitutionality  of  the  measure 
was,  that  the  States,  when  they  adopted  the  Constitution, 
had  entered  into  a  compact  by  which  the  scale  of  representa- 
tion in  the  Senate  and  House  of  Representatives  was  de- 
termined ;  that  the  Constitution  in  providing  for  the  admis- 


24  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

sion  of  new  States  meant  only  such  as  could  be  formed  out 
of  the  territory  in  the  possession  of  the  country  at  the  time 
of  its  adoption ;  that  the  admission  of  each  new  State  weak- 
ened the  influence  of  every  old  State  in  each  House  of  Con- 
gress; and  that  it  had  never  been  contemplated  by  the 
framers  of  the  Constitution  that  the  influence  of  the  orig- 
inal States  should  be  further  weakened  by  the  admission 
of  new  States  beyond  what  would  follow  from  the  creation 
of  new  States  out  of  the  territory  then  possessed.  It  was 
claimed  that  to  admit  others  would  be  such  a  breach  of  the 
fundamental  agreement  as  would  justify  a  secession  from 
the  Union.  It  was  pointed  out  that  so  many  new  States 
might  be  admitted  that  the  original  thirteen  altogether 
would  constitute  a  mere  minority  in  the  Senate. 

Such,  it  was  claimed,  could  never  have  been  the  intention 
of  these  original  thirteen  when  they  formed  this  "more  per- 
fect Union."  But  the  argument  did  not  prevail  and  the 
treaty  was  ratified.  It  is  interesting,  however,  to  note  that 
Mr.  Gouverneur  Morris,  to  whom  as  the  member  of  the 
Convention  who  proposed  the  article  authorizing  the  admis- 
sion of  new  States  we  have  already  referred,  in  his  cor- 
respondence about  this  time  (1803)  writes  that  he  does 
not  regard  the  admission  of  new  States  from  such  newly 
acquired  territory  as  within  the  meaning  of  the  Constitu- 
tion. He  says  in  answer  to  a  correspondent:  "I  perceive  I 
mistook  the  drift  of  your  injuiry,  which  substantially  is, 
whether  Congress  can  admit,  as  a  new  State,  territory 
which  did  not  belong  to  the  United  States  when  the  Con- 
stitution was  made.  In  my  opinion  they  cannot.  I  always 
thought,  when  we  should  acquire  Canada  and  Louisiana,  it 
would  be  proper  to  govern  them  as  provinces  and  allow 
them  no  voice  in  our  councils.  In  wording  the  third  section 
of  the  fourth  article,  I  went  as  far  as  circumstances  would 
permit  to  establish  the  exclusion.  Candor  obliges  me  to 
add  my  belief,  that  had  it  been  more  pointedly  expressed, 
a  strong  opposition  would  have  been  made."  (Dred  Scott  v. 
Sandford,  19  Howard,  393,  1856,  at  page  507,  quoting  3 
Mor.  Writ.  192.) 

As  has  been  said  before,  it  was  not  until  1828  that  the 
question  reached  the  Supreme  Court.     Missouri  and  Louisi- 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         25 

ana  had  by  that  time  been  admitted  into  the  Union  from  the 
new  territory.  It  is  not  surprising,  then,  that  Mr.  Justice 
Johnson  said  in  the  Circuit  Court:  "The  right,  therefore, 
of  acquiring  territory  is  altogether  incidental  to  the  treaty- 
making  power,  and  perhaps  to  the  power  of  admitting  new 
States  into  the  Union."  Certain  it  is  that  by  this  time  the 
doubts  as  to  the  power  to  admit  States  out  of  territory 
acquired  subsequent  to  the  adoption  of  the  Constitution  had 
been  laid  at  rest.  The  power  was  recognized  as  existing 
unrestrained  in  regard  to  such  territory.  It  was  a  primary 
power,  and  to  it  naturally  and  logically  the  power  of  ac- 
quiring territory  might  be  attached.  Implying  the  power 
in  this  way  coincided  completely  with  *Chief  Justice  Mar- 
shall's own  rule  as  to  the  implication  of  powers,  and  yet  that 
great  Chief  Justice,  in  delivering  the  opinion  of  the  Court 
when  the  case  was  decided  on  appeal,  did  not  refer  to  this 
as  a  source  of  the  power  to  acquire  territory,  but  assigned 
it  to  the  war  and  treaty-making  powers.  But  he  in  no  way 
dissented  from  the  opinion  of  Mr.  Justice  Johnson  delivered 
at  Circuit  nor  disapproved  of  it.  And  Justice  Johnson 
does  not  dissent  nor  deliver  a  concurring  opinion,  though, 
since  he  was  a  member  of  the  Supreme  Court,  he  might  have 
done  so,  had  he  thought  the  opinion  of  the  Chief  Justice  at 
variance  with  that  delivered  by  himself.  The  fact  that  he 
did  not  feel  impelled  to  reiterate  his  own  views  shows,  both 
that  he  did  not  regard  the  difference  between  the  language 
of  the  Chief  Justice  and  his  own  as  of  much  importance, 
and  that  the  point  was  not  contested  in  the  case — the  right 
to  acquire  the  territory  being  admitted,  it  was  immaterial  to 
what  source  the  Court  referred  it.  {American  Insurance 
Co.  V.  Canter.) 

In  the  famous  Dred  Scott  Case,  19  Howard,  393,  1856, 
Mr.  Chief  Justice  Taney,  in  delivering  the  so-called 
opinion  of  the  Court,  having  considered  the  power  under 
which  the  United  States  governs  its  Territories,  says  at 
page  446 :  "This  brings  us  to  examine  by  what  provision  of 
the  Constitution  the  present  Federal  Government,  under  its 
delegated  and  restricted  powers,  is  authorized  to  acquire 
territory  outside  of  the  original  limits  of  the  United  States, 
and  what  powers  it  may  exercise  therein  over  the  person 


26  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

or  property  of  a  citizen  of  the  United  States,  while  it  re- 
mains a  Territory,  and  until  it  shall  be  admitted  as  one  of 
the  States  of  the  Union.  .  .  The  power  to  expand  the 
territory  of  the  United  States  by  the  admission  of  new 
States  is  plainly  given;  and  in  the  construction  of  this 
power  by  all  the  departments  of  the  Government,  it  has  been 
held  to  authorize  the  acquisition  of  territory,  not  fit  for  ad- 
mission at  the  time,  but  to  be  admitted  as  soon  as  its  popu- 
lation and  situation  would  entitle  it  to  admission.  It  is 
acquired  to  become  a  State,  and  not  to  be  held  as  a  colony 
and  governed  by  Congress  with  absolute  authority;  and  as 
the  propriety  of  admitting  a  new  State  is  committed  to  the 
sound  discretion  of- Congress,  the  power  to  acquire  territory 
for  that  purpose,  to  be  held  by  the  United  States  until  it  is 
in  a  suitable  condition  to  become  a  State  upon  an  equal  foot- 
ing with  the  other  States,  must  rest  upon  the  same  dis- 
cretion. It  is  a  question  for  the  political  department  of  the 
Government,  and  not  for  the  judicial;  and  whatever  the 
political  department  of  the  Government  shall  recognize  as 
within  the  limits  of  the  United  States,  the  judicial  depart- 
ment is  also  bound  to  recognize."  Now,  it  is  well  known 
that  in  the  view  of  this  case  taken  by  Mr.  Justice  Nelson 
the  consideration  of  this  feature  of  the  case  was  unneces- 
sary. The  decision  might  have  been  complete  without  any 
reference  to  the  power  of  Congress  over  the  Territories. 
But  the  national  importance  of  the  matters  in  issue  and 
the  more  than  careful  consideration  given  to  the  discussion 
by  the  various  members  of  the  Court  render  the  dicta  of  the 
judges  of  more  than  ordinary  weight ;  and  this  language  of 
the  Chief  Justice,  so  far  as  it  applies  to  the  implication  of 
the  power  to  acquire  territory  from  the  power  to  admit  new 
States  into  the  Union,  is  a  clear  and  forcible  statement  of  the 
law  upon  this  subject.  It  is  entirely  consistent  with  the 
normal  construction  of  the  implied  powers,  and  is  sustained 
by  the  logic  and  reasoning  of  these  decisions.  It  may  well 
be  accepted  as  the  law,  so  far  as  it  allows  the  derivation 
of  the  power  to  acquire  territory  from  the  power  to  admit 
new  States  into  the  Union. 

Not  that  it  is  necessarily  correct  in  its  statement  that  ter- 
ritory is  acquired  to  be  held  "not  as  a  colony."     If  this 


OVER   THE   TERRITORY   OF   THE    UNITED   STATES.         2/ 

power  to  admit  new  States  is  the  only  source  of  the  power 
to  acquire  territory  this  would  be  the  logical  conclusion,  but 
if  there  is  another  source  from  which  this  power  may  be 
drawn  restrictions  must  be  found  elsewhere.^ 

Since  no  limitations  are  placed  in  the  Constitution  upon 
the  right  of  the  Government  to  admit  new  States  from  ter- 
ritory other  than  that  out  of  which  States  have  already  been 
erected,  the  auxiliary  power  to  acquire  territory  for  this 
purpose  is,  so  far  as  the  Constitution  is  concerned,  un- 
limited. The  expansion  of  the  country  under  this  constitu- 
tional power  is  fully  justified,  and  needs  no  other  basis  for 
its  support  so  long  as  the  creating  of  new  States  is  the  end 
for  which  the  territory  is  acquired.  And  yet  in  this  Dred 
Scott  Case  Mr.  Justice  Curtis,  dissenting,  though  he  does 
not  claim  that  territory  may  be  acquired  to  be  held  per- 
manently as  a  colony,  nevertheless  does  not  refer  the  power 
to  acquire  it  to  the  power  to  admit  new  States,  but  refers  it 
to  the  war  and  treaty-making  powers.  He  says  in  regard 
to  the  acquisition  of  new  territory  (p.  613)  :  "Whatever 
doubts  may  then  [that  is,  at  the  time  of  the  Louisiana  pur- 
chase] have  existed,  the  question  must  now  be  taken  to  have 
been  settled.  Four  distinct  acquisitions  of  foreign  territory 
have  been  made  by  as  many  different  treaties,  under  as  many 
different  administrations.  Six  States  formed  on  such  ter- 
ritory are  now  in  the  Union.  Every  branch  of  this  Gov- 
ernment, during  a  period  of  more  than  fifty  years,  has  par- 
ticipated in  these  transactions.  To  question  their  validity 
now  is  in  vain."  He  then  quotes  the  language  of  Mr.  Chief 
Justice  Marshall  in  American  Insurance  Co.  v.  Canter, 
supra,  to  which  we  have  already  referred,  and  in  which  this 
power  is  referred  to  the  war  and  treaty-making  powers. 

*But  this  is  not  the  only  language  of  the  Court  implying  that  the 
erection  of  States  is  the  only  purpose  for  which  territory  may  be 
acquired.  In  Shively  v.  Bowlby,  152  U.  S.  i,  1894,  at  page  49,  it  is  said : 
"And  the  Territories  acquired  by  Congress,  whether  by  deed  of  cession 
from  the  original  States,  or  by  treaty  with  a  foreign  country,  are  held 
with  the  object,  as  soon  as  their  population  and  condition  justify  it,  of 
being  admitted  into  the  Union  as  States."  Whether  this  is  the  sole 
object  justifying  the  acquisition  of  territory,  we  do  not  now  consider. 
At  all  events,  the  language  of  the  case  supports  the  view  that  it  is  an 
entirely  constitutional  object. 


28  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

The  entire  absence  of  any  reference  to  the  power  to  admit 
new  States  is,  under  the  circumstances,  strange;  and  yet 
it  is  not  easy  to  say  just  how  much  weight  should  be  given 
to  such  an  omission  on  the  part  of  Mr.  Justice  Curtis.  It  is, 
however,  made  more  apparent  by  the  fact  that  in  another 
part  of  his  opinion,  where  he  is  not  using  the  direct  quota- 
tion (p.  6ii),  he  expresses  himself  in  the  same  way. 

This,  then,  is  the  result  to  which  we  are  brought :  That 
there  is  reason  to  believe  that  the  framers  of  the  Constitu- 
tion did  not  contemplate  the  admission  of  new  States  out 
of  territory  other  than  that  possessed  at  the  time  of  the 
adoption  of  the  Constitution,  and  that  this  makes  against 
the  assigning  of  the  power  to  acquire  territory  to  the  power 
to  admit  new  States  into  the  Union ;  that  though  we  find  but 
little  in  the  reports  assigning  the  power  to  acquire  territory 
to  the  war  or  treaty-making  power,  we  find  still  less  assign- 
ing it  to  the  primary  power  to  admit  new  States  into  the 
Union;  that  in  the  two  leading  cases,  where  it  has  been  so 
assigned  by  certain  judges,  other  judges  have  silently  passed 
over  it  as  a  source  of  this  power ;  but  that  upon  the  construc- 
tion usual  in  reference  to  the  implied  powers  it  seems  a  more 
natural  source  from  which  to  derive  this  secondary  power 
than  is  either  of  the  powers  first  referred  to,  viz.,  the  war 
and  treaty-making  powers. 

D.  The  Power  to  Acquire  Territory  as  a  Necessary  Inci- 
dent of  National  Sovereignty. 

We  revert  now  to  the  language  of  Mr.  Justice  Bradley  in 
the  case  of  Mormon  Church  v.  United  States,  136  U.  S.  i, 
1890,  at  page  42  (cited  above,  p.  20)  :  "The  power  to  ac- 
quire territory,  other  than  the  territory  northwest  of  the 
Ohio  River  (which  belonged  to  the  United  States  at  the 
adoption  of  the  Constitution),  is  derived  from  the  treaty- 
making  power  and  the  power  to  declare  and  carry  on  war. 
The  incidents  of  these  powers  are  those  of  national  sov- 
ereignty, and  belong  to  all  independent  governments.  The 
power  to  make  acquisitions  of  territory  by  conquest,  by 
treaty  and  by  cession  is  an  incident  of  national  sovereignty.'' 
In  this  language,  it  seems  to  us,  may  be  found,  to  a  certain 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         29 

extent,  an  explanation  of  the  language  used  in  the  decisions 
which  assign  to  the  war  and  treaty-making  powers  the 
power  to  acquire  territory,  and  a  suggestion  as  to  a  logical 
basis  on  which  to  support  this  power  other  than  the  right  of 
the  Congress  to  admit  new  States  into  the  Union. 

Mr.  Justice  Bradley  does  not  endeavor  to  show  that  the 
power  to  acquire  territory  is  ancillary  to  these  other  great 
powers.  He  does  say  it  is  "derived"  from  them.  But  he 
follows  this  statement  immediately  with  the  phrase  "tht 
incidents  of  these  powers  are  those  of  national  sovereignty, 
and  belong  to  all  independent  governments."  This  seems 
to  explain  his  previous  language  in  a  measure,  and  to  indi- 
cate that  the  meaning  is  that  only  in  a  sovereign,  independ- 
ent government  are  the  great  powers  of  declaring  and 
carrying  on  war  and  concluding  treaties  vested,  and  in  such 
a  government  there  necessarily  inheres  as  a  result  the  right 
to  take  advantage  of  all  the  fruits  of  the  exercise  of  these 
powers,  among  which  prominently  appears  the  acquisition 
of  territory.  This  is  an  incident  accompanying  the  exercise 
of  such  powers — not  a  means  to  carrying  them  on.  It  is 
recognized  as  accompanying  their  exercise  by  the  other 
great  nations  of  the  globe,  and  to  deny  it  to  the  Federal  Gov- 
ernment would  be  to  strip  it  of  that  degree  of  power  which 
inheres,  almost  of  necessity,  in  a  sovereign  and  independent 
state.  *Tt  could  not  have  been  intended  by  those  who 
framed  our  Constitution  that  we  should  be  born  a  cripple 
among  the  nations." 

The  power  to  acquire  territory  is  not  auxiliary  to  these 
other  powers  in  the  usual  sense,  but  they  can  be  vested  only 
in  a  sovereignty,  and  the  acquisition  of  territory  is  an  attri- 
bute of  sovereignty.  That  such  is  the  import  of  this 
language  we  think  is  further  shown  by  the  last  sentence: 
"The  power  to  make  acquisitions  of  territory  by  conquest, 
by  treaty  and  by  cession  is  an  incident  of  national  sov- 
ereignty." 

At  first  glance  it  might  appear  that  this  is  a  somewhat 
radical  position,  in  view  of  the  historical  development  of 
the  Federal  Government  and  the  provision  in  the  Constitu- 
tion, so  often  referred  to  by  strict  constructionists,  that 
"The  powers  not  delegated  to  the  United  States  by  the 


30  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people."  (Article  X  of 
the  Amendments.)  But  upon  closer  examination,  it  is  be- 
lieved, the  theory  is  not  so  alarming  as  may  at  first  appear. 
Undoubtedly  it  is  a  means  by  which  the  powers  of  Congress 
in  many  lines  may  be  readily  justified,  whereas  to  search  for 
a  single  express  power  in  every  instance  to  which  each  indi- 
vidual implied  power  might  be  linked  would  be  a  slower 
and  more  difBcult  process.  It  may,  too,  lead  to  a  freer  inter- 
pretation of  the  Constitution;  but  it  applies  rather  to  those 
relations  of  the  Federal  Government  with  the  outside  world 
than  to  its  relations  with  its  constituent  elements,  the  States. 

Alexander  Hamilton,  in  speaking  of  the  implied  powers 
of  the  Government,  said:  "There  is  also  this  further  cri- 
terion which  may  materially  assist  the  decision.  Does  the 
proposed  measure  abridge  a  pre-existing  right  of  any  State. 
or  of  any  individual  ?  If  it  does  not,  there  is  a  strong  pre- 
sumption in  favor  of  its  constitutionality ;  and  slighter  rela- 
tions to  any  declared  object  may  he  permitted  to  turn  the 
scale"  Of  course,  Hamilton's  views  of  government  are 
well  known,  and  Mr.  Justice  Bradley,  too,  favored  by  his 
decisions  strengthening  the  arm  of  the  Federal  Government, 
but  this  does  not  impair  the  reasonableness  and  force  of  the 
thought  expressed  by  either  of  them. 

The  greatest  fears  of  the  opponents  of  the  Constitution, 
as  is  well  known,  arose  from  a  disposition  to  regard  the  cen- 
tralization of  the  governing  power  a  menace  to  local  inter- 
ests. The  history  of  almost  every  struggle  in  the  Conven- 
tion points  clearly  to  this.  It  is  scarcely  necessary  to  call 
attention  to  the  three  great  contests,  over  the  scale  of  repre- 
sentation, the  control  of  commerce  and  the  regulation  of 
the  slave  trade,  as  strikingly  illustrative  of  this  fact.  So 
long  as  the  central  government  could  represent  the  States 
in  the  intercourse  with  the  outside  world  without  risk  to  the 
local  interests  of  any  section,  it  might  exercise  its  power 
with  little  objection  on  the  part  of  the  States.  It  was  the 
jealousy  for  the  preservation  of  State  power,  the  traditional 
Anglo-Saxon  idea  of  the  localization  of  power,  that  pre- 
sented the  greatest  trouble  in  the  establishment  of  the  Fed- 
eral Government.     When,  therefore,  the  question  of  the 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         3! 

existence  of  a  power  arises,  and  it  is  apparently  a  power 
which,  if  existing,  will  operate  so  as  to  impair  State  power 
and  action,  or  directly  affect  prior  rights  of  the  citizens  of 
these  States,  it  might  well  be  insisted  that  its  existence 
should  be  clearly  established.  On  the  other  hand,  if  the 
power  is  one  which  can  be  exercised  only  by  the  nation  as 
a  whole,  if  it  is  so  exercised  by  all  other  independent  gov- 
ernments, if  it  in  no  respect  impinges  on  the  power  and 
authority  of  the  State  governments,  there  is  much  less 
reason  to  believe  that  its  exercise  was  denied  by  the  framers 
of  the  Constitution  to  the  Government  of  the  United  States, 
and  it  is  but  reasonable  to  allow  "slighter  relations  to  any  de- 
clared object"  "to  turn  the  scale." 

Such  questions  will  arise  in  the  exercise  of  powers  which 
can  be  exercised,  if  at  all,  only  by  the  whole  nation  acting 
as  a  unit.  The  Government  of  the  United  States  is  a  nation, 
and  for  its  constituent  parts  is  the  only  agency  which  can 
act  as  a  unit  in  those  great  relations  which  it  sustains 
towards  the  rest  of  the  world.  As  was  said  by  Mr.  Chief 
Justice  Marshall  in  Cohens  v.  Virginia,  6  Wheaton,  264, 
1 82 1,  at  page  413  :  "That  the  United  States  form,  for  many^ 
and  for  most  important  purposes,  a  single  nation,  has  not 
yet  been  denied.  In  war,  we  are  one  people.  In  making 
peace,  we  are  one  people.  In  all  commercial  regulations, 
we  are  one  and  the  same  people.  In  many  other  respects, 
the  American  people  are  one;  and  the  government  which  is 
alone  capable  of  controlling  and  managing  their  interests 
in  all  these  respects  is  the  government  of  the  Union.  It  is 
their  government,  and  in  that  character  they  have  no  other. 
America  has  chosen  to  be,  in  many  respects,  and  to  many 
purposes,  a  nation;  and  for  all  these  purposes,  her  govern- 
ment is  complete;  to  all  these  objects,  it  is  competent.  The 
people  have  declared,  that  in  the  exercise  of  all  powers  given 
for  these  objects  it  is  supreme."  To  much  the  same  effect 
are  the  expressions  of  Mr.  Justice  Bradley  in  the  Legal 
Tender  Cases,  12  Wallace,  457,  1870,  at  page  555 :  "The 
United  States  is  not  only  a  government,  but  it  is  a  National 
government,  and  the  only  government  in  this  country  that 
has  the  character  of  nationality.  It  is  invested  with  power 
over  all  the  foreign  relations  of  the  country,  war,  peace,  and 


32  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

negotiations  and  intercourse  with  other  nations;  all  which 
are  forbidden  to  the  State  governments.  It  has  jurisdiction 
over  all  those  general  subjects  of  legislation  and  sovereignty 
which  affect  the  interests  of  the  whole  people  equally  and 
alike,  and  which  require  uniformity  of  regulation  and 
laws."  The  learned  judge  then  proceeds  with  an  enumera- 
tion of  the  express  powers  of  the  Government  and  adds: 
"Such  being  the  character  of  the  General  government,  it 
seems  to  be  a  self-evident  proposition  that  it  is  invested 
with  all  those  inherent  and  implied  powers  which,  at  the 
time  of  adopting  the  Constitution,  were  generally  considered 
to  belong  to  every  government  as  such,  and  as  being  essen- 
tial to  the  exercise  of  its  functions."  We  quote  once  more 
from  his  opinion,  at  page  554:  "The  Constitution  of  the 
United  States  established  a  government,  and  not  a  league, 
compact,  or  partnership.  It  was  constituted  by  the  people. 
It  is  called  a  government.  In  the  eighth  section  of  Article 
I  it  is  declared  that  Congress  shall  have  power  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested 
by  this  Constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  office  thereof.  As  a  government 
it  was  invested  with  all  the  attributes  of  sovereignty." 

It  is  this  idea  of  the  unity  of  the  central  government,  and 
its  National  character,  that  leads  to  the  conception  of  its 
essential  sovereignty  in  relation  to  the  outside  nations.  Just 
as  in  the  study  of  psychology  it  is  constantly  inculcated 
that  the  mind  is  a  unit,  and  the  so-called  faculties  are  only 
manifestations  of  its  varying  forms  of  activity;  so,  in  this 
conception  of  the  Federal  Government,  it  is  regarded  as  a 
single  unified  power  created  by  the  Constitution,  whose 
various  activities  are  exhibited  in  the  exercise  of  funda- 
mental powers  there  specifically  enumerated,  but  which  is 
not  more  completely  described  as  a  mere  bundle  of  specified 
powers,  than  is  the  mind  by  a  description  of  each  of  its 
separate  faculties.  And  just  as  an  enumeration  of  the  so- 
called  faculties  of  the  mind  does  not  adequately  represent 
it;  so,  on  the  other  hand,  the  powers  granted  to  the  Fed- 
eral Government,  considered  apart  and  separately,  do  not 
fully  describe  the  product  when  they  are  all  welded  to 


OVER    THE    TERRITORY    OF    THE    UNITED    STATES.         33 

form  a  single  government.  Their  conjoining  brings  about 
a  product  different  from  their  separate  though  combined 
existence — it  results  in  the  creation  of  a  National  Sov- 
ereignty. The  analogy  we  have  attempted  to  draw  may  be 
fanciful,  but  it  seems,  we  think,  to  illustrate  the  present  point. 
It  may  be  difficult  to  assign  a  power  in  question  to  any 
power  specifically  granted,  and  yet,  on  the  other  hand,  it 
may  be  still  more  difficult  to  conceive  of  a  nation  occupying 
a  position  of  equality  with  the  great  nations  of  the  world 
denied  an  important  power  of  sovereignty,  and  that,  too,  not 
in  its  dealings  with  its  own  citizens,  but  in  its  relations  with 
the  outside  world.  It  may  be  a  power  which  results  from 
the  conjoining  of  the  expressed  powers  as  a  necessity  to 
national  existence. 

Mr.  Justice  Strong,  delivering  the  opinion  of  the  Court 
in  the  Legal  Tender  Cases,  12  Wallace,  457,  1870,  at  page 
534,  says :  'Tt  is  to  be  observed  it  is  not  indispensable  to  the 
existence  of  any  power  claimed  for  the  Federal  Govern- 
ment that  it  can  be  found  specified  in  the  words  of  the  Con- 
stitution, or  clearly  and  directly  traceable  to  some  one  of  its 
specified  powers.  Its  existence  may  be  deduced  fairly  from 
more  than  one  of  the  substantive  powers  expressly  defined,  or 
from  them  all  combined.  It  is  allowable  to  group  together 
any  number  of  them  and  infer  from  them  all  that  the  power 
claimed  has  been  conferred."  So  it  is  claimed  the  grant 
of  the  great  powers  may  of  necessity  create  such  a  political 
entity  that  other  powers  must  be  inherent  in  it,  though  these 
are  not  in  strictness  '^necessary  and  proper  to  carry  into 
execution"  any  single  one  of  the  granted  powers. 

As  illustrating  an  application  of  this  doctrine  we  may 
refer  to  the  case  of  United  States  v.  Jones,  109  U.  S.  513, 
1883,  at  page  518,  where,  in  discussing  the  power  of  eminent 
domain  in  the  United  States,  the  Court,  speaking  through 
Mr.  Justice  Field,  says:  "The  power  to  take  private  prop- 
erty for  public  uses,  generally  termed  the  right  of  eminent 
domain,  belongs  to  every  independent  government.  It  is 
an  incident  of  sovereignty,  and  as  said  in  Boom  v.  Patter- 
son, 98  U.  S.  406,  requires  no  constitutional  recognition." 

But  the  cases  which  best  illustrate  this  point,  and  which 
are  more  closely  related  in  reasoning  to  the  question  of  the 


34  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

acquisition  of  territory,  are  the  cases  which  arose  in  conse- 
quence of  the  Federal  legislation  with  regard  to  the  exclu- 
sion of  the  Chinese  from  the  United  States.  Thus  in  the 
Chinese  Exclusion  Case,  130  U.  S.  581,  1888,  at  page  604, 
Mr.  Justice  Field,  having  first  considered  the  treaties  with 
China,  comes  to  the  discussion  of  the  source  of  the  power 
of  Congress  to  pass  the  act  in  question.  He  says :  ''While 
under  our  Constitution  and  form  of  government  the  great 
mass  of  local  matters  is  controlled  by  local  authorities,  the 
United  States,  in  their  relation  to  foreign  countries  and  their 
subjects  or  citizens,  are  one  nation,  invested  with  powers 
which  belong  to  independent  nations,  the  exercise  of  which 
can  be  invoked  for  the  maintenance  of  its  absolute  independ- 
ence and  security  throughout  its  entire  territory."  And 
after  referring  to  some  of  the  cases  cited  above,  he  says : 
"The  control  of  local  matters  being  left  to  local  authorities 
and  national  matters  being  entrusted  to  the  govern- 
ment of  the  Union,  the  problem  of  free  institutions  existing 
over  a  widely  extended  country  having  different  climates 
and  varied  interests  has  been  happily  solved.  For  local 
interests  the  several  States  of  the  Union  exist,  but  for 
national  purposes,  embracing  our  relations  with  foreign 
nations,  we  are  but  one  people,  one  nation,  one  power.'*  And 
the  decision  of  the  case,  upholding  the  Act  of  Congress  is 
based  primarily  upon  the  principle  of  international  law 
granting  to  sovereign  nations  the  right  to  exclude  from 
their  soil  such  individuals  as  they  deem  proper.  Says  IMr. 
Justice  Field :  "The  power  of  exclusion  of  foreigners  being 
an  incident  of  sovereignty  belonging  to  the  government  of 
the  United  States,  as  a  part  of  those  sovereign  powers 
granted  by  the  Constitution,  the  right  to  its  exercise  at  any 
time  when,  in  the  judgment  of  the  government,  the  interests 
of  the  country  require  it,  cannot  be  granted  away  or  re- 
strained on  behalf  of  any  one." 

So  again  in  the  case  of  Nishimura  Ekiu  v.  United  States, 
142  U.  S.  651,  1892,  Mr.  Justice  Gray,  delivering  the 
opinion  of  the  Court,  says:  "It  is  an  accepted  maxim  of 
international  law  that  every  sovereign  nation  has  the  power 
as  inherent  in  sovereignty,  and  essential  to  self-preservation, 
to  forbid  the  entrance  of  foreigners  within  its  dominions,  or 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         35 

to  admit  them  only  in  such  cases  and  upon  such  conditions 
as  it  may  seem  fit  to  prescribe."  This  is  quoted  in  Fong 
Yue  Ting  v.  United  States ^  149  U.  S.  698,  1893,  and  sup- 
ported by  citations  from  various  publicists :  Vattel,  Ortolan, 
Phillimore  and  Bar.  The  basis  of  the  decision  is  the  sov- 
ereignty in  relation  to  foreign  nations:  *'The  United 
States,"  says  the  Court,  "are  a  sovereign  and  independent 
nation,  and  are  vested  by  the  Constitution  with  the  entire 
control  of  international  relations,  and  with  all  the  powers 
of  government  necessary  to  control  and  make  it  effective. 
The  only  government  of  this  country,  which  other  nations 
recognize  or  treat  with,  is  the  government  of  the  Union; 
and  the  only  American  flag  known  throughout  the  world  is 
the  flag  of  the  United  States." 

We  have  quoted  thus  at  length  from  these  decisions  be- 
cause the  doctrine  which  they  apparently  declare  can  hardly 
be  said  to  be  established  as  a  principle  of  constitutional  con- 
struction, and  the  cases  giving  it  their  sanction  are  not 
numerous.  However,  we  believe  that  the  principles  there 
enunciated  are  of  great  weight  in  reference  to  the  power 
of  the  Government  to  acquire  territory. 

A  hasty  glance  through  the  enumerated  powers  of  Con- 
gress at  once  reveals  how  many  refer  to  the  foreign  rela- 
tions of  the  Government.  These  are  vested  in  it  in  full  and 
ample  terms,  at  the  same  time  that  they  are  denied,  in  many 
instances,  to  the  States  either  expressly  or  by  necessary  im- 
plication. The  relations  of  this  nation  with  foreign  coun- 
tries are  intended  to  be  carried  on  through  the  National  Gov- 
ernment, and  so  far  as  it  acts  with  reference  to  these  foreign 
governments,  they  recognize  it  alone,  and  the  States  are  of 
no  importance.  It  will  not  be  contended  that  the  right  to 
acquire  territory  does  exist  elsewhere  than  in  the  Federal 
Government.  Further,  this  right  is  a  recognized  attribute 
of  sovereignty  among  the  nations  of  the  world.  It  is  a 
power  which,  if  exercised,  does  not  infringe  upon  the  rights 
of  the  States  or  of  their  inhabitants.  It  was  a  power  well 
recognized  at  the  time  of  the  adoption  of  the  Constitution. 
It  is  such  a  power  as  the  Federal  Government  would  exer- 
cise only  in  its  dealings  with  foreign  governments.  The 
power  of  Congress  in  dealing  with  them  is  plenary,  is  ex- 


36  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

elusive  of  the  States,  and  includes,  we  believe,  the  power  to 
acquire  territory  as  an  incident  of  national  sovereignty.^ 

This,  then,  it  seems,  is  the  force  of  the  language  of  Mr. 
Justice  Bradley,  which  we  quoted  at  the  beginning  of  this 
branch  of  our  discussion:  That  the  grant  of  the  great 
powers  to  Congress  has,  with  reference  to  the  foreign 
world,  created  a  sovereignty;  that  in  its  relations  with  for- 
eign nations  it  may  exercise  the  powers  of  sovereignty 
recognized  as  inhering  in  the  independent  nations  of  the 
world;  that  among  such  powers  is  the  power  to  acquire 
territory;  that  this  exists,  not  as  "necessary  and  proper"  to 
carry  into  execution  the  war  and  treaty-making  powers,  but 
as  an  incident  of  the  sovereignty  which  the  grant  of  such 
great  powers  necessarily  creates. 

E.  The  Purposes  for  which  Territory  May  he  Acquired. 

If  we  have  correctly  analyzed  the  source  of  the  power  of 
the  United  States  Government  to  acquire  territory,  we  are 
now  prepared  to  consider  for  what  purpose  or  purposes  ter- 

*It  is  pertinent  to  inquire  at  this  point  what  express  power  in  the 
Constitution  may  be  pointed  to  as  the  primary  power  to  which  may 
be  linked  the  secondary  power  to  acquire  territory,  by  discovery  as  in 
the  case  of  Oregon,  or  by  joint  resolution  of  the  House  and  Senate, 
as  in  the  case  of  Texas  and  Hawaii.  "Thus,  in  part  at  least,  'the  title 
of  the  United  States  to  Oregon  was  founded  upon  original  discovery 
and  actual  settlement  of  citizens  of  the  United  States,  authorized  or 
approved  by  the  government  of  the  United  States.'  (Shively  v.  Bowlhy, 
152  U.  S.  50.)  .  .  .  Texas  was  admitted  into  the  Union  by  com- 
pact with  Congress  in  1845.  ...  By  joint  resolution  the  Hawaiian 
Islands  came  under  the  sovereignty  of  the  United  States  in  1898." 
(Mr.  Justice  White  in  Downes  v.  Bidwell,  "Opinions  Delivered  in 
the  Insular  Tariff  Cases,"  85.)  It  is  evidently  impossible  to  assign 
these  acquisitions  to  the  war  or  treaty-making  power.  Unless,  there- 
fore, we  are  willing  to  adopt  the  theory  that  the  ultimate  admission 
of  territory  as  States  is  the  sole  object  for  which  it  may  be  acquired, 
we  find  no  other  express  power  to  which  it  may  be  assigned.  Upon 
the  theory  however  that  the  power  to  acquire  territory  is  an  ordinary 
incident  of  national  sovereignty  necessarily  created  by  the  grant  of 
such  great  powers  as  are  given  in  the  Federal  Constitution,  we  reach 
a  satisfactory  and,  we  believe,  a  correct  solution.  (Written  after  the 
submission  of  this  essay  to  the  Faculty  of  the  Law  Department  of  the 
University  of  Pennsylvania.) 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         3/ 

ritory  may  be  acquired.  The  comparatively  frequent  acqui- 
sitions of  territory  by  the  Government  of  the  United  States^ 
and  the  recognition  of  this  right  by  all  departments  of  the 
Government  leave  its  existence  undisputed.  But  this  does 
not  in  itself  meet  the  question  whether  under  our  constitU' 
tional  form'  of  government  the  power  to  acquire 
territory  is  limited  in  its  exercise,  or  may  be  em- 
ployed with  no  restrictions  except  those  which  exist  in 
regard  to  the  other  nations  of  the  world,  and  which  are 
determined  by  the  law  of  nations  rather  than  by  the  funda- 
mental law  of  any  single  government. 

This  latter,  we  believe,  is  the  correct  position.  If  we  have 
correctly  traced  the  source  of  the  power  to  acquire  territory, 
this  is  a  necessary  consequence.  We  reach,  then,  the  con- 
clusion that  the  United  States  has  the  full  right  to  acquire 
territory,  not  only  for  the  purpose  of  admitting  new  States 
from  it,  but  for  the  purpose  of  establishing  colonies.  That 
the  power  to  establish  colonies  is  an  ordinary  attribute  of 
sovereignty  possessed  by  the  members  of  the  family  of  na- 
tions does  not  need  proof.  No  matter  what  the  form  of 
government,  whether  monarchy  or  republic,  this  power  has 
been  exercised  by  the  nations  of  the  world  for  hundreds  of 
years.  It  were  a  mere  matter  of  enumeration  to  cite 
instances.  Unless  we  are  prepared  to  deny  to  the  Govern- 
ment of  the  United  States  an  equality  of  rank  in  this  respect 
in  its  relations  with  the  powers  of  the  worlds  it  too  posseses 
this  power  to  establish  colonies  as  an  inherent  attribute  of 
sovereignty,  and  as  a  consequence  the  power  to  acquire  ter- 
ritory for  this  purpose. 

A  passage  from  the  opinion  of  Chief  Justice  Taney  in  the 
Dred  Scott  Case  is  contradictory  of  this  position.  He  says^ 
at  page  446 :  "There  is  certainly  no  power  given  by  the  Con- 
stitution to  the  Federal  Government  to  establish  or  main- 
tain colonies  bordering  on  the  United  States  or  at  a  distance, 
to  be  ruled  and  governed  at  its  own  pleasure ;  nor  to  enlarge 
its  territorial  limits  in  any  way  except  by  the  admission  of 
new  States.  .  .  But  no  power  is  given  to  acquire  a 
Territory  to  be  held  and  governed  permanently  in  that 
character."  And  a  little  farther  on  he  reiterates  the  same 
position  when  he  says,  speaking  of  the  acquisition  of  terri- 


38  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

tory :  "It  is  acquired  to  become  a  State,  and  not  to  be  held 
as  a  colony  and  governed  by  Congress  with  absolute  author- 
ity." Now  just  here  it  may  be  said  that  the  power  of  the 
Federal  Government  "to  acquire  a  Territory  to  be  held  and 
governed  permanently  in  that  character/'  and  its  power  to 
govern  such  Territory  "with  absolute  authority/'  are  two 
entirely  distinct  questions,  and  the  former  may  exist  with- 
out of  necessity  establishing  the  latter.  It  is  with  the  former 
that  we  are  at  present  concerned — the  latter  will  require  our 
study  later.^  But  considering  the  general  position  of  Chief 
Justice  Taney,  it  may  be  admitted  that  had  this  been  the 
language  of  a  unanimous  Court  with  reference  to  the  very 
point  in  issue,  itself  the  ratio  decidendi,  it  would  be  un- 
doubtedly of  great  weight;  but  in  view  of  the  fact  that, 
though  the  opinion  of  the  Chief  Justice  is  called  the  opinion 
of  the  Court,  separate  opinions  are  delivered  by  all  the  other 
judges  (that  of  Mr.  Justice  Grier,  however,  being  hardly 
more  than  a  concurrence),  and  though  a  concurrence  is  ex- 
pressed in  its  views  by  two  of  the  Justices  (Wayne  and 
Campbell),  yet  they  write  opinions  of  their  own  in  which 
this  phase  of  the  subject  does  not  meet  with  a  treatment 
coincident  with  that  of  the  Chief  Justice,  the  language  is 
deprived  of  much  of  its  force.  Remembering,  too,  the  his- 
tory of  the  case,  and  the  fact  that  Mr.  Justice  Nelson's 
opinion  was  to  have  been  the  opinion  of  the  Court,  and  that 
many  of  the  positions  of  the  Chief  Justice  must  be  con- 
sidered as  overruled  by  the  subsequent  history  of  the  coun- 
try, it  does  not  seem  too  much  to  claim  that  this  language 
of  this  judge  is  not  of  controlling  importance,  and  that  if  it 
were  before  the  Court  upon  an  occasion  where  the  welfare 
of  the  country  demanded  a  departure  from  its  terms,  would 
not  be  deemed  binding. 

It  is  interesting  to  note  that  Mr.  Justice  Campbell  in  his 
concurring  opinion,  refers  to  the  language  of  Mr.  Gouv- 
erneur  Morris,  which  we  have  quoted  above  (p.  24),  where 
he  says :  "I  always  thought,  when  we  should  acquire  Canada 
and  Louisiana,  it  would  be  proper  to  govern  them  as  prov- 
inces, and  allow  them  no  voice  in  our  councils."     And  this 

"V.  post,  p.  64. 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         39 

language,  though  contrary  to  the  views  of  the  Chief  Justice, 
does  not  receive  adverse  criticism  from  the  judge  who 
quotes  it.  It  will  be  remembered  that  it  was  Mr.  Gouver- 
neur  Morris  who  made  the  motion  to  insert  the  article  in 
reference  to  the  admission  of  new  States  into  the  Constitu- 
tion. This  article  was  unanimously  adopted  by  the  Con- 
vention. It  is  not  without  force,  then,  that  we  find  from 
this  source  an  expression  favoring  the  legality  of  a  colonial 
government  by  the  United  States.  And  Mr.  Justice  Camp- 
bell goes  on  to  say:  ''The  first  Territorial  Government  of 
Louisiana  was  an  imperial  one,  founded  upon  a  French  or 
Spanish  model.  For  a  time,  the  Governor,  Judges,  Legis- 
lative Council,  Marshal,  Secretary,  and  officers  of  the 
militia  were  appointed  by  the  President." 

The  governments  of  our  present  Territories,  leaving  out 
of  view  for  the  time  being  our  most  recent  acquisitions,  are 
colonial  in  character.  They  present  this  difference,  how- 
ever, from  the  ordinary  colony,  that  to  them  is  held  out  the 
promise  of  future  Statehood,  and,  as  we  shall  find  later,  the 
power  of  Congress  over  their  inhabitants  is  not  absolutely 
unlimited.  Otherwise,  however,  their  status  is  that  of  a 
colony  under  the  control  of  the  Federal  Government,*  how- 
ever admirable  may  be  the  exercise  of  that  control  by  Con- 
gress. It  is  the  Federal  Government  that  passes  the  organic 
act  which  constitutes,  as  it  were,  the  constitution  of  the 
Territory;  the  people  of  the  Territory  have  no  voice  in  its 
adoption.  The  President  of  the  United  States  appoints 
the  governor,  who  has  a  veto  upon  the  legislation  of  the  Ter- 
ritory, which  veto  may  in  some  instances  be  overridden  by 
a  two-thirds  vote  of  each  of  the  two  houses  of  the  Terri- 

*In  view  of  the  subject  we  have  chosen,  viz.,  "The  Constitutional 
Power  of  Congress  over  the  Territory  of  the  United  States,"  we  have 
deemed  it  unnecessary  to  inquire  into  the  status  of  the  inhabitants  of 
acquired  territory.  Undoubtedly,  until  our  most  recent  acquisitions, 
the  tendency  was  to  confer  citizenship  upon  them,  but  it  has  seemed  to 
us  that  instead  of  entering  into  the  technical  question  of  the  citizen- 
ship of  the  inhabitants  of  the  possessions  of  the  United  States,  more 
satisfactory  and  more  practical  results  could  be  obtained  by  a  study  of 
the  limitations  of  the  power  of  Congress  over  the  persons  and  property 
of  these  inhabitants,  and  at  the  same  time  the  question  as  to  their  status 
would  be  (to  some  extent)  solved. 


40  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

torial  legislature;  but  even  with  this  power  an  act  of  Con- 
gress may  be  passed  to  supersede  and  render  of  no  effect 
any  act  of  the  Territorial  legislature  whatever.  The  Presi- 
dent of  the  United  States  also  appoints  the  judges  of  the 
Supreme  Court  of  the  Territory,  and  a  United  States 
Marshal  and  United  States  District  Attorney.  The  Terri- 
tories have  no  vote  in  the  Congress  of  the  United  States, 
and  though  the  House  of  Representatives  admits  a  delegate 
from  each  Territory,  who  has  a  seat  in  that  House  and  who 
may  speak  upon  the  floor  of  the  House,  this  gives  him  no 
vote,  and  is  a  privilege  secured  to  the  Territory  by  an  act  of 
Congress  which  might  at  any  time  be  repealed,  and  is  not 
secured  by  the  fundamental  law.  (See  Bryce's  "American 
Commonwealth,"  Vol.  I,  Chapter  XLVH,  p.  578.)  It  is 
apparent  that  the  form  of  government  is  colonial,  and  how- 
ever large  may  be  the  powers  of  local  legislation  allowed 
to  the  Territories,  it  is  power  which  is  allowed,  and  not 
which  exists  as  of  right;  power,  too,  which  might  be  taken 
from  the  Territories  and  exercised  by  Congress. 

It  seems  clear,  then,  that  the  question  is  rather  as  to 
whether  the  power  exists  in  the  United  States  to  hold  ter- 
ritory permanently  as  a  colony,  than  that  there  is  a  doubt 
as  to  its  power  so  to  govern  territory  for  a  time,  since  such 
latter  power  has  for  nearly  a  century  been  exercised  and 
acquiesced  in  as  constitutional  by  all  branches  of  the  Gov- 
ernment. 

Such  power,  we  claim,  does  exist  and  exists  as  a  neces- 
sary incident  of  the  national  sovereignty  created  in  virtue 
of  the  great  powers  expressly  granted  to  Congress. 

But  a  further  objection  frequently  made  to  its  existence 
is  that  it  violates  the  principles  fought  for  in  the  Revolution 
and  the  very  theory  of  our  governmental  institutions.  Ad- 
mitting that  these  are  the  goal  towards  which  all  govern- 
ment should  tend,  nevertheless  it  cannot  be  admitted  that 
the  Constitution  aims  to  secure  to  all  parts  of  the  domain 
of  the  United  States  equal  rights  of  self-government.  It 
has  permanently  deprived  the  District  of  Columbia  of  self- 
government,  and  in  reference  to  the  territory  of  the  United 
States  no  provision  is  made  obligatory  as  to  the  admission 
of  new  States.     The  case  of  Loughborough  v.  Blake,  5 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         4 1 

Wheaton,  317,  1820,  in  which  the  right  of  Congress  to  tax 
the  District  of  Columbia  was  drawn  in  question,  though 
using  conservative  language,  is  clear  to  the  effect  that  the 
Constitution  did  not  contemplate  the  right  of  government 
as  depending  in  all  cases  upon  the  right  of  representation. 
Speaking  of  the  inhabitants  of  the  District,  Chief  Justice 
Marshall  says:  "Certainly  the  Constitution  does  not  con- 
sider their  want  of  representation  in  Congress  as  exempt- 
ing it  from  equal  taxation." 

Undoubtedly,  it  would  be  more  consistent  with  American 
theory  that  all  parts  of  the  governed  territory  should  be 
represented  in  the  government.  The  admission  of  voteless 
representatives  is,  as  it  were,  a  tacit  admission  of  this,  but  no 
means  of  representation  is  known  to  the  Constitution  except 
the  admission  of  the  Territory  as  a  State,  and  this  is  fre- 
quently a  solution  not  feasible.  (See  Bryce's  "American 
Commonwealth,''  Vol.  I,  p.  587.)  In  such  cases,  where  a 
Territory  is  denied  Statehood,  it  is  manifestly  because  the 
inhabitants  are  unfit  for  the  new  duties  and  responsibilities 
which  Statehood  would  impose.  That  the  Government 
should  refuse  Statehood  to  a  community  reaching  the  or- 
dinary standards  required  is  highly  improbable.  New  con- 
ditions, race  characteristics  differing  the  people  in  tempera- 
ment and  political  traditions  from  the  Anglo-Saxon  ideal, 
and  long  inexperience  of  self-government  would  undoubt- 
edly be  weighty  reasons  for  deeming  a  community  below 
the  level  at  which  Statehood  is  deserved.  But  the  full 
power  to  determine  whether  the  community  has  reached  the 
point  of  deserving  Statehood  and  whether  Statehood  shall 
be  conferred  is  a  political  question,  entrusted  to  Congress, 
which  has  the  power  to  admit  new  States. 

Chief  Justice  Taney  says  in  the  Dred  Scott  Case  at  page 
447:  "As  the  propriety  of  admitting  a  new  State  is  com- 
mitted to  the  sound  discretion  of  Congress,  the  power  to 
acquire  territory  for  that  purpose,  to  be  held  by  the  United 
States  until  it  is  in  a  suitable  condition  to  become  a  State 
upon  an  equal  footing  with  the  other  States,  must  rest  upon 
the  same  discretion.  It  is  a  question  for  the  political  depart- 
ment of  the  Government,  and  not  the  judicial ;  and  whatever 
the  political  department  of  the  Government  shall  recognize 


42  THE    CONSTITUTIONAL   POWER   OF   CONGRESS 

as  within  the  limits  of  the  United  States,  the  judicial  depart- 
ment is  also  bound  to  recognize." 

Since,  then,  it  is  a  political  question,  and  is  vested  in  Con- 
gress for  its  settlement,  the  question  of  the  right  to  hold 
territory  permanently  as  a  colony  seems  to  be  one  which  can- 
not directly  come  before  the  United  States  Supreme  Court. 
It  will  not  be  contended  that  the  Court  could  by  any  judicial 
process  accomplish  the  admission  of  a  Territory  to  State- 
hood. The  question  is  one  entrusted  to  the  Congress  for 
solution.  A  declaration  on  its  part  that  new  territory  will 
be  held  permanently  as  a  colony  is  exceedingly  unlikely. 
Such  a  declaration  would  be  to  no  purpose.  All  the  terri- 
tory could  be  held  under  the  avowed  purpose  of  creating 
States  from  it,  and  yet,  since  the  time  of  the  admission  as 
States  depends  entirely  upon  the  discretion  of  Congress, 
the  colonial  form  of  government  could  be  continued  in- 
definitely, with  no  power  in  existence  to  bring  Congress  to 
a  decision  as  to  whether  the  territory  should  be  at  once 
admitted  or  permanently  held  as  a  colony.  We  come  to  the 
conclusion,  then,  that  though  the  power  to  hold  territory 
permanently  as  a  colony  were  not  legitimately  derived  from 
the  Constitution,  nevertheless  such  power  would  practically 
exist  in  Congress,  since  it  has  the  power  to  acquire  territory 
for  new  States,  but  the  additional  power  to  determine,  with 
unlimited  discretion,  when  Statehood  shall  be  conferred, 
and  in  the  meantime  to  maintain  a  government  colonial  in 
character. 

However,  we  believe  that  under  the  Constitution  the 
power  to  establish  colonies  does  exist;  that  it  is  an  incii- 
dent  of  the  sovereignty  necessarily  created  in  the  grant  to 
the  Government  of  the  United  States  of  the  great  powers 
enumerated  in  the  Constitution;  that  therefore  Congress 
has  the  full  power  to  acquire  territory  under  the  law  of 
nations,  either  to  hold  under  a  colonial  government,  or  to 
admit  new  States  therefrom. 

Having  thus  reviewed  the  right  of  the  Government  of  the 
United  States  to  acquire  territory,  we  now  turn  to  the  next 
branch  of  our  subject  and  enter  upon  the  study 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         43 

II.  Of  THE  Power  of  the  Government  Over  Territory 
When  Acquired. 

And  under  this  second  part  of  our  discussion  we  take  up 
first 

A.  The  Status  of  the  Rights  of  the  Inhabitants  of  Ac- 
quired Territory  upon  its  Acquisition. 

In  the  present  state  of  civilization  the  only  source  of  the 
acquisition  of  territory  being  the  transfer  of  territory  from 
one  nation  to  another,  whether  under  the  diplomacy  of 
peace  or  the  necessity  of  war,  in  every  instance  we  have  as 
a  subject  of  the  transfer  a  territory  already  peopled  in  which 
personal  and  proprietary  rights  already  exist.  Of  course,  it  is 
entirely  competent  for  the  governments  contracting,  in  re- 
gard to  the  transfer  of  this  territory,  to  stipulate  for  the 
maintenance  of  existing  rights,  and  such  has  been  the  usual 
course  in  the  treaties  by  which  new  territory  has  been 
acquired  by  the  United  States.  But  apart  from  such  stipu- 
lations, the  rights  of  the  inhabitants  of  ceded  territory  are 
protected  under  the  law  of  nations.  The  ceding  power  can 
transfer  only  what  it  possesses,  and  that  is  its  relation  to  the 
inhabitants  as  sovereign  and  as  ultimus  haeres  of  all  prop- 
erty. Immediate  proprietary  rights  it  does  not  have,  except 
in  such  cases  as  government  buildings,  reserved  land  and  so 
forth,  for  it  has  already  granted  these  away  to  the  inhabi- 
tants of  the  territory.  Hence  it  does  not  have  them  to  cede 
to  the  acquiring  power,  and  such  power  can  reach  them  only 
by  confiscation,  an  act  hardly  consistent  with  free  govern- 
ment. Consequently  in  our  country  we  find  existing  titles 
sacredly  protected  upon  the  acquisition  of  territory. 

In  one  of  the  earliest  cases  upon  this  subject,  Soulard  v. 
United  States,  4  Peters,  511,  1830,  Mr.  Chief  Justice  Mar- 
shall says :  "In  the  treaty  by  which  Louisiana  was  acquired, 
the  United  States  stipulated  that  the  inhabitants  of  the 
ceded  territory  should  be  protected  in  the  free  enjoyment  of 
their  property.  The  United  States,  as  a  just  nation,  regard 
this  stipulation  as  the  avowal  of  a  principle  which  would 
have  been  equally  sacred,  though  it  had  not  been  inserted  in 


44  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

the  contract.  The  term  'property/  as  appHed  to  lands,  com- 
prehends every  species  of  title  inchoate  or  complete.  It  is 
supposed  to  embrace  those  rights  which  lie  in  contract; 
those  which  are  executory;  as  well  as  those  which  are 
executed.  In  this  respect  the  relation  of  the  inhabitants  to 
their  government  is  not  changed.  The  new  government 
takes  the  place  of  that  which  has  passed  away." 

The  same  great  Chief  Justice  expresses  more  fully 
the  principles  at  the  basis  of  this  doctrine  in  United  States  v. 
Percheman,  7  Peters,  51,  1833,  at  page  86:  'Tt  may  not  be 
unworthy  of  remark,  that  it  is  very  unusual,  even  in  cases 
of  conquest,  for  the  conqueror  to  do  more  than  to  displace 
the  sovereign  and  assume  dominion  over  the  country.  The 
modern  usage  of  nations,  which  has  become  law,  would  be 
violated;  that  sense  of  justice  and  of  right  which  is 
acknowledged  and  felt  by  the  whole  civilized  world  would 
be  outraged,  if  private  property  should  be  generally  con- 
fiscated, and  private  rights  annulled.  The  people  change 
their  allegiance;  their  relation  to  their  ancient  sovereign  is 
dissolved;  but  their  relations  to  each  other  and  their  rights 
of  property  remain  undisturbed.  If  this  be  the  modern 
rule  even  in  cases  of  conquest,  who  can  doubt  its  applica- 
tion to  an  amicable  cession  of  territory?  ...  A  cession 
of  territory  is  never  understood  to  be  a  cession  of  the  prop- 
erty belonging  to  its  inhabitants.  The  king  cedes  that  only 
which  belonged  to  him.  Lands  he  had  previously  granted 
were  not  his  to  cede.  Neither  party  could  so  understand 
the  cession.  Neither  party  could  consider  itself  as  attempt- 
ing a  wrong  to  individuals,  condemned  by  the  practice  of 
the  whole  civilized  world.  The  cession  of  a  territory  by  its 
name  from  one  sovereign  to  another,  conveying  the  com- 
pound idea  of  surrendering  at  the  same  time  the  lands  and 
the  people  who  inhabit  them,  would  be  necessarily  under- 
stood to  pass  the  sovereignty  only,  and  not  to  interfere  with 
private  property." 

This  case  is  a  leading  one,  and  is  referred  to  repeatedly 
in  subsequent  cases,  the  very  language  being  frequently 
quoted.  It  arose,  as  did  the  case  cited  immediately  before 
it,  in  reference  to  the  question  of  the  validity  of  titles  alleged 
to  have  had  their  origin  before  the  acquisition  of  the  terri- 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         45 

tory  in  which  the  property  was  situated.  Their  doctrine 
has  been  referred  to  time  and  time  again.  (Delassus  v. 
United  States^  9  Peters,  117,  1835,  at  page  133;  Mitchel  v. 
United  States,  9  Peters,  711,  1835,  at  V^K^  733 »  Str other  v. 
Lucas,  12  Peters,  410,  1838,  at  page  438;  Lessee  of  Pol- 
lard's Heirs  v.  Kibbe,  14  Peters,  353,  1840,  at  pages  390, 
406,  409,  416;  Leitensdorfer  v.  Webb,  20  Howard,  176, 
1857;  Dent  V.  Emmeger,  14  Wallace,  308,  1871,  at  page 
312;  Tameling  v.  United  States,  93  U.  S.  644,  1876,  at 
page  661 ;  Astiazaran  v.  Santa  Rita  Land  and  Mining  Co., 
148  U.  S.  80,  1893,  at  page  81 ;  Ainsa  v.  New  Mexico  & 
Arizona  Railroad,  175  U.  S.  76,  1899,  at  page  79.)  In  this 
last  case  the  Court  says :  "The  duty  of  securing  such  rights, 
and  of  fulfilling  the  obligations  imposed  upon  the  United 
States  by  the  treaty,  belongs  to  the  political  department ;  and 
Congress  may  either  itself  discharge  that  duty,  or  delegate 
its  performance  to  a  strictly  judicial  tribunal  or  to  a  board 
of  commissioners.  .  .  .  Even  grants  which  were  com- 
plete at  the  time  of  the  cession  may  be  required  by  Con- 
gress to  have  their  genuineness  and  their  extent  established 
by  proceedings  in  a  particular  manner  before  they  can  be 
held  to  be  valid.  But  where  no  such  proceedings  are  ex- 
pressly required  the  recognition  of  grants  of  this  class  in 
the  treaty  itself  is  sufficient  to  give  them  full  effect." 

So  the  determination  by  Congress  is  conclusive  upon  the 
judiciary,  as  well  in  relation  to  the  boundary  of  the  terri- 
tory acquired,  as  to  the  extent  of  grants  made  to  the  inhabi- 
tants prior  to  acquisition;  Foster  and  Elant  v.  Neilson,  2 
Peters,  253,  1829,  at  page  306,  as  to  the  boundary  of  the 
ceded  territory ;  Astiazaran  v.  Santa  Rita  Land  and  Mining 
Co.,  148  U.  S.  80,  1893,  ^^  P^ge  83 »  ^s  to  the  boundary  of 
tract  claimed  by  the  alleged  grantee;. in  which  latter  case  the 
Court  says :  "The  action  of  Congress,  when  taken,  being  con- 
clusive upon  the  merits  of  the  claim,  it  necessarily  follows 
that  the  judiciary  cannot  act  upon  the  matter  while  it  is 
pending  before  Congress ;  for  if  Congress  should  decide  the 
same  way  as  the  Court,  the  judgment  of  the  Court  would  be 
nugatory ;  and  if  Congress  should  decide  the  other  way,  its 
decision  would  control." 

This  question  is  not  strictly  within  the  limits  of  our  sub- 


46  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

ject,  but  it  is  so  germane  to  it  that  it  has  seemed  worth 
while  to  refer  to  it  thus  briefly,  and  to  outline  the  general 
principles  which  are  recognized  by  this  Government  in  rela- 
tion to  the  rights  of  the  inhabitants  of  acquired  territory. 
This  seems  of  importance,  first,  because,  before  we  can  con- 
sider the  constitutional  power  of  the  Government  over  the 
new  acquisitions,  we  should  know  the  existing  status  of 
legal  relations,  since  the  power  of  the  Government  must  be 
exercised  with  reference  to  them,  either  allowing  them  to 
stand  or  altering  them  as  it  may  deem  fit ;  and,  in  the  second 
place,  it  incidentally  illustrates  the  attitude  of  the  Court 
toward  questions  of  this  nature,  discussing  them  under 
the  general  principles  of  international  law,  and  regarding 
the  United  States  Government  as  a  sovereignty  whose  rela- 
tions with  other  governments  are  regulated  by  that  code. 
It,  therefore,  in  an  indirect  way  we  admit,  adds  some  weight 
to  the  stand  taken  in  an  earlier  part  of  this  paper,  that  the 
United  States  must,  in  its  relations  with  the  outside  world, 
be  deemed  a  sovereignty  possessed  of  those  powers  which  in 
the  family  of  nations  are  considered  "incidents  of  sov- 
ereignty." 

Having  attempted  thus  briefly  to  outline  the  general 
status  of  legal  rights  existing  upon  the  acquisition  of  ter- 
ritory, our  next  inquiry  is  into  the  power  of  Congress  over 
this  territory  to  modify  or  control  these  existing  relations, 
and  in  reference  to  this  part  of  our  discussion  it  will  be 
convenient  to  consider  it  under  the  general  heads  of  the 
source  of  this  power  under  the  Constitution,  the  manner  of 
its  exercise,  and  its  limitations  if  any.     And  first 

B.  Of  the  Source  from  which  Congress  Derives  its 
Power  to  Govern  the  Territory  of  the  United  States — 

a  very  different  question  from  that  as  to  the  source  of  its 
power  to  acquire  territory. 

"Of  course,"  says  Mr.  Justice  Bradley,  delivering  the 
opinion  of  the  Court  in  California  v.  Pacific  Railroad  Co., 
127  U.  S.  I,  1888,  at  page  39,  "the  authority  of  Congress 
over  the  Territories  of  the  United  States,  and  its  power  to 
grant  franchises  exercisable  therein,   are,  and  ever  have 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         47 

been,  undoubted";  and  in  1879  Mr.  Chief  Justice  Waite, 
speaking  for  the  Court  in  National  Bank  v.  County  of 
Yankton,  loi  U.  S.  129,  1879,  says  at  page  132:  "It  is 
certainly  now  too  late  to  doubt  the  power  of  Congress  to 
govern  the  Territories.  There  have  been  some  differences 
of  opinion  as  to  the  particular  clause  of  the  Constitution 
from  which  the  power  is  derived,  but  that  it  exists  has 
always  been  conceded."  Our  present  object  is  to  outline 
briefly  these  differences  of  opinion  as  they  appear  in  the  de- 
cisions, with  some  reference  to  the  reasoning  in  support  of 
the  different  views. 

The  main  question  upon  which  divergence  of  views 
exists  is  whether  the  power  to  govern  territory  may  be 
deduced  from  the  third  section  of  Article  IV  of  the  Con- 
stitution, which  gives  to  the  Congress  "power  to  dispose 
of  and  make  all  needful  rules  and  regulations  respecting 
the  territory  or  other  property  belonging  to  the  United 
States." 

The  earliest  case  in  regard  to  this  subject  is  Sere  v.  Pitot, 
6  Cranch,  332,  18 10,  in  which  Chief  Justice  Marshall  says, 
at  page  336:  "The  power  of  governing  and  legislating  for 
a  Territory  is  the  inevitable  consequence  of  the  right  to 
acquire  and  to  hold  territory.  Could  this  position  be  con- 
tested, the  Constitution  of  the  United  States  declares  that 
'Congress  shall  have  power,'  etc.  [quoting  the  Article  re- 
ferred to  above].  Accordingly  we  find  Congress  possessing 
and  exercising  the  absolute  and  undisputed  power  of  gov- 
erning and  legislating  for  the  territory  of  Orleans."  It  is 
interesting  to  compare  this  language  with  that  of  the  same 
judge  in  the  case  of  the  American  Insurance  Co.  v.  Canter 
(already  referred  to),i  Peters, 511, 1828, at  page  542,  where 
he  says  with  reference  to  the  government  of  Florida :  "In  the 
meantime  Florida  continues  to  be  a  territory  of  the  United 
States;  governed  by  virtue  of  that  clause  in  the  Constitu- 
tion which  empowers  Congress  'to  make  all  needful  rules 
and  regulations  respecting  the  territory,  or  other  property 
belonging  to  the  United  States.'  Perhaps  the  power  of 
governing  a  territory  belonging  to  the  United  States,  which 
has  not,  by  becoming  a  State,  acquired  the  means  of  self- 
government,  may  result  necessarily  from  the  facts,  that  it  is 


48  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

not  within  the  jurisdiction  of  any  particular  State,  and  is 
within  the  power  and  jurisdiction  of  the  United  States. 
The  right  to  govern  may  be  the  inevitable  consequence  of 
the  right  to  acquire  territory.  Whichever  may  be  the  source 
whence  the  power  is  derived,  the  possession  of  it  is  unques- 
tioned." He  still  states  the  Article  as  a  source  of  this 
power,  but  there  is  a  note  of  question  in  the  other  part 
of  his  language,  and  it  cannot  be  regarded  as  an  absolute 
assertion  that  this  Article  of  the  Constitution  was  meant  to 
have  so  broad  a  scope.  It  is  not  improbable  that  this 
language  of  the  Chief  Justice  was  influenced  by  what  Mr. 
Justice  Johnson  had  said  at  Circuit  in  trying  the  case :  "At 
the  time  the  Constitution  was  formed,  the  limits  of  the  ter- 
ritory over  which  it  was  to  operate  were  generally  defined 
and  recognized.  These  limits  consisted  in  part  of  organ- 
ized States,  and  in  part  of  Territories,  the  absolute  property 
and  dependencies  of  the  United  States.  These  States,  this 
territory  and  future  States  to  be  admitted  into  the  Union, 
are  the  sole  objects  of  the  Constitution ;  there  is  no  express 
provision  whatever  made  in  the  Constitution  for  the  acqui- 
sition or  government  of  territories  beyond  those  limits."  In 
neither  of  these  cases  was  it  necessary  to  decide  as  to  the 
source  of  this  power.  They  show,  however,  clearly  enough, 
the  views  which  may  be  taken  in  subsequent  cases. 

With  reference  to  the  power  to  govern  as  a  necessary 
consequence  of  the  power  to  acquire,  there  seems  to  be  no 
question,  and  subsequent  decisions  will  be  found  fully  in 
accord  with  this.  As  to  the  other  question,  the  point  of  dif- 
ference is  whether  other  territory  than  that  held  at  the  time 
of  the  adoption  of  the  Constitution  may  be  legitimately 
regarded  as  within  the  contemplation  of  the  framers  of  the 
instrument;  in  other  words  as  forming  one  of  the  objects 
upon  which  that  clause  of  the  Constitution  (Article  IV, 
section  3)  was  to  operate. 

With  regard  to  the  first  position  that  the  right  to  govern 
is  a  necessary  consequence  of  the  right  to  acquire,  we  may 
cite  Murphy  v.  Ramsey,  114  U.  S.  15,  1885,  at  page  44, 
in  which  Mr.  Justice  Matthews  says:  "The  people  of  the 
United  States,  as  sovereign  owners  of  the  National  Terri- 
tories, have  supreme  power  over  them  and  their  inhabi- 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         49 

tants";  United  States  v.  Kagama,  ii8  U.  S.  375,  1886, 
where  Mr.  Justice  Miller  says,  at  page  380 :  ''The  power  of 
Congress  to  organize  territorial  governments,  and  make 
laws  for  their  inhabitants,  arises  not  so  much  from  the 
clause  in  the  Constitution  in  regard  to  disposing  of  and 
making  rules  and  regulations  concerning  the  territory  and 
other  property  of  the  United  States,  as  from  the  ownership 
of  the  country  in  which  the  Territories  are,  and  the  right  of 
exclusive  sovereignty  which  must  exist  in  the  National 
Government,  and  can  be  found  nowhere  else";  Mormon 
Church  V.  United  States,  136  U.  S.  i,  1890,  Mr.  Justice 
Bradley,  delivering  the  opinion  of  the  Court,  says  at  page 
42 :  "It  would  be  absurd  to  hold  that  the  United  States  has 
power  to  acquire  territory,  and  no  power  to  govern  it  when 
acquired.  .  .  .  Having  rightfully  acquired  said  terri- 
tories, the  United  States  Government  was  the  only  one 
which  could  impose  laws  upon  them,  and  its  sovereignty 
over  them  was  complete.  No  State  of  the  Union  had  any 
such  right  of  sovereignty  over  them;  no  other  country  or 
government  had  any  such  right.  These  propositions  are  so 
elementary,  and  so  necessarily  follow  from  the  condition 
of  things  arising  upon  the  acquisition  of  new  territory,  that 
they  need  no  argument  to  support  them.  They  are  self- 
evident." 

On  the  other  hand,  it  is  not  difficult  to  find  cases  referring 
to  the  express  language  of  Article  IV  as  the  source  of  this 
power.  In  United  States  v.  Gratiot,  14  Peters,  526,  1840, 
Mr.  Justice  Thomson  says  at  page  537:  "The  term  terri- 
tory, as  here  used  [that  is,  in  Article  IV,  section  3],  is 
merely  descriptive  of  one  kind  of  property ;  and  is  equivalent 
to  the  word  lands.  And  Congress  has  the  same  power  over 
it  as  over  any  other  property  belonging  to  the  United 
States ;  and  this  power  is  vested  in  Congress  without  limita- 
tion; and  has  been  considered  the  foundation  upon  which 
the  territorial  governments  rest."  Cross  v.  Harrison,  16 
Howard,  164,  1853,  contains  language  to  the  same  effect, 
at  page  193 :  "The  territory  had  been  ceded  as  a  conquest, 
and  was  to  be  preserved  and  governed  as  such  until  the  sov- 
ereignty to  which  it  had  passed  had  legislated  for  it.  That 
sovereignty  was  the  United  States,  under  the  Constitution, 


50  THE    CONSTITUTIONAL   POWER   OF   CONGRESS 

by  which  power  had  been  given  to  Congress  to  dispose  of 
and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States." 
And  a  little  further  on  the  passage  from  American  Insur- 
ance Co.  V.  Canter,  quoted  above  (p.  47),  is  referred  to. 
Again  in  United  States  v.  Guthrie,  ly  Howard,  284,  1854, 
at  page  309,  Mr.  Justice  McLean,  in  a  dissenting  opinion, 
after  referring  to  the  two  sources  of  the  power  suggested 
by  Canter's  Case,  says :  "It  seems  to  me  that  the  power  to 
govern  a  territory  is  a  necessary  consequence  of  the  power 
given  *to  make  all  needful  rules  and  regulations  respecting 
the  territory  or  other  property  belonging  to  the  United 
States.'  " 

Now  it  may  be  noticed  in  regard  to  these  cases :  First, 
that  in  none  of  them  was  the  determination  of  the  exact 
source  of  the  power  of  Congress  to  govern  its  territory 
necessary  to  the  decision  of  the  case,  hence  the  language 
of  the  judges  is  of  the  nature  of  obiter  dicta.  In  the  second 
place  it  will  be  seen  that  the  cases  referring  principally  to 
the  express  language  of  the  Constitution  are  prior  to  1856, 
while  those  which  tend  to  regard  the  power  to  govern  as  a 
necessary  consequence  of  the  power  to  acquire  are  subse- 
quent to  that  date.  It  was  in  that  year  that  the  Supreme 
Court  handed  down  the  Dred  Scott  decision,  which  is  the 
only  case  containing  a  careful  and  analytical  consideration 
of  this  subject.  It  seems  clear  that  it  was  this  decision  which 
changed  the  trend  of  judicial  views  upon  this  question,  and 
we  desire  to  follow  the  line  of  reasoning  by  which  the  ma- 
jority arrived  at  their  conclusion,  as  well  as  the  reasoning 
by  which  that  conclusion  was  opposed. 

In  discussing  this  branch  of  this  celebrated  case.  Chief 
Justice  Taney  says,  at  page  432 :  "The  counsel  for  the  plain- 
tiff has  laid  much  stress  upon  that  article  in  the  Constitution 
which  confers  on  Congress  the  *power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States' ;  but  in  the 
judgment  of  the  Court,  that  provision  has  no  bearing  on  the 
present  controversy,  and  the  power  there  given,  whatever  it 
may  be,  is  confined,  and  was  intended  to  be  confined,  to  the 
territory  which  at  that  time  belonged  to,  or  was  claimed  by. 


I 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         5! 

the  United  States,  and  was  within  their  boundaries  as 
settled  by  the  treaty  with  Great  Britain,  and  can  have  no 
influence  upon  a  territory  afterwards  acquired  from  a  for- 
eign government.  It  was  a  special  provision  for  a  known 
and  particular  territory,  and  to  meet  a  present  emergency, 
and  nothing  more."  Then  follows  a  brief  summary  of  the 
history  of  the  time  preceding  the  adoption  of  the  Constitu- 
tion in  its  relation  to  the  scope  of  this  Article.  The  Chief 
Justice  outlines  the  difficulties  which  had  arisen  among  the 
States  in  reference  to  the  unsettled  territory  included  within 
the  chartered  limits  of  some  of  the  States,  causing  much 
uneasiness  during  the  war,  but  proving  far  more  serious 
after  peace  was  established.  The  States  were  burdened 
with  war  debt;  some  could  turn  to  this  unsettled  territory 
as  a  resource,  while  others,  not  having  any  such  territory 
within  their  boundaries,  "saw  before  them  many  years  of 
heavy  and  burdensome  taxation."  These  latter  insisted 
that  as  it  had  been  by  the  joint  efforts  of  all  the  States  that 
independence  had  been  achieved  and  the  benefits  of  this  ter- 
ritory secured,  so  it  should  be  held  for  the  benefit  of  all,  as 
a  common  source  from  which  might  be  paid  the  war  debt. 

The  question  developed  serious  proportions,  and  gave 
rise  to  grave  fears,  which,  however,  were  "at  once  removed 
when  the  State  of  Virginia  in  1784  voluntarily  ceded  to  the 
United  States  the  immense  tract  of  country  lying  north- 
west of  the  river  Ohio,  and  which  was  within  the  acknowl- 
edged limits  of  the  State."  Other  cessions  followed,  and 
the  dangers  from  this  source  were  averted.  These  cessions 
were  accepted  by  Congress  (that  is,  the  Congress  of  the 
Confederation),  which  had  no  right,  says  the  Chief  Justice, 
under  the  Articles  of  Confederation,  to  accept  them,  but  did 
have  such  right,  as  representing  independent  sovereignties, 
to  accept  any  transfer  for  their  common  benefit,  and  to  make 
rules  for  such  ceded  territory.  It  was  for  the  government 
of  it  that  the  famous  Ordinance  of  1787  was  passed. 

This  territory  belonged  to  the  several  confederated 
States  as  common  property,  but  under  the  new  Constitution 
a  new  Government  was  to  be  brought  into  existence,  to 
succeed  this  federated  Union,  and  "to  exercise  no  authority 
beyond  those  expressly  granted  by  the   Constitution  or 


52  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

necessarily  to  be  implied  from  the  language  of  the  instru- 
ment, and  the  objects  it  was  intended  to  accomplish;  and  as 
this  league  of  States  would,  upon  the  adoption  of  the  new 
Government,  cease  to  have  any  power  over  the  territory, 
and  the  ordinance  they  had  agreed  upon  be  incapable  of 
execution,  it  was  obvious  that  some  provision  was  necessary 
to  give  the  new  Government  sufficient  power  to  enable  it  to 
carry  into  effect  the  objects  for  which  it  was  ceded,  and 
the  compacts  and  agreements  which  the  States  had  made 
with  each  other  in  the  exercise  of  their  powers  of  sover- 
eignty." It  was  for  this  specific  purpose  that  the  Article 
was  required,  and  for  this  that  it  was  inserted,  and  one  of 
the  first  acts  of  the  new  Congress  under  it  was  to  re-affirm 
the  Ordinance  of  1787. 

The  Chief  Justice  then  turns  to  the  language  of  the 
Article,  and  finds  strong  support  for  his  view  in  a  careful 
analysis  of  it.  "It  does  not  speak  of  any  territory,  nor  of 
Territories,  but  uses  language  which,  according  to  its  legiti- 
mate meaning,  points  to  a  particular  thing.  The  power  is 
given  in  relation  only  to  the  territory  of  the  United  States 
— that  is,  to  a  territory  then  in  existence,  and  then  known 
or  claimed  as  the  territory  of  the  United  States."  The 
"other  property,"  referred  to  must  mean  personal  property, 
since  that  specified  is  land ;  and  this  must  refer  to  such  prop- 
erty, that  is,  ships,  arms,  and  so  forth,  belonging  to  these  sov- 
ereignties in  common,  for  it  would  not  have  been  necessary 
to  confer  such  power  in  reference  to  ships  it  might  itself 
build,  or  arms  it  might  itself  manufacture  or  provide  for  the 
public  service. 

The  concluding  words  of  the  clause,  in  view  of  the  con- 
dition of  things  at  the  time,  and  the  claims  of  various  States, 
clearly  refer  to  the  territory  then  possessed,  and  to  that 
alone.  The  language  that  "nothing  in  the  Constitution 
should  be  construed  to  prejudice  any  claims  of  the  United 
States,  or  of  any  particular  State,"  cannot  in  reason  be 
applied  to  territory  which  might  in  future  be  acquired,  since 
to  it  no  single  State  could  have  any  basis  for  a  claim.  This 
clause  relating  so  clearly  only  to  land  then  possessed,  ob- 
viously strengthens  the  conclusion  that  the  former  clause 
is  so  restricted.     The  words,  "rules  and  regulations"  are 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         53 

significant.  The  power  is  given,  not  as  it  is  in  reference 
to  the  District  of  Columbia,  "to  exercise  exclusive  legisla- 
tion,'' etc.,  but  language  is  used  similar  to  language  in  other 
parts  of  the  Constitution  where  a  particular  specified  power 
is  granted  and  not  general  powers  of  legislation.  *'As,  for 
example,  in  the  particular  power  to  Congress  'to  make  rules 
for  the  government  and  regulation  of  the  land  and  naval 
forces'  or  the  particular  and  specific  power  to  regulate  com- 
merce ;  'to  establish  a  uniform  rule  of  naturalization ;  to  coin 
money  and  regulate  the  value  thereof.'  "  Considering  other 
clauses  in  the  Constitution,  for  example,  the  provision  that 
debts  against  the  old  Confederation  are  to  remain  valid 
against  the  new  government,  or  treaties  concluded  before 
the  adoption  of  the  Constitution,  are  to  remain  binding  sub- 
sequent to  its  coming  into  effect,  we  find  certain  Articles 
the  necessity  for  which  is  clearly  apparent  in  consequence 
of  the  fact  that  a  new  Government  is  to  be  created  to  sup- 
plant the  former  "federative  Union,"  and  not  to  be  its  mere 
successor. 

"Whether,  therefore,"  says  the  Chief  Justice,  "we  take 
the  particular  clause  in  question  by  itself,  or  in  connection 
with  the  other  provisions  of  the  Constitution,  we  think  it 
clear,  that  it  applies  only  to  the  particular  territory  of  which 
we  have  spoken,  and  cannot,  by  any  just  rule  of  interpreta- 
tion, be  extended  to  new  territory  which  the  new  Govern- 
ment might  afterwards  obtain  from  a  foreign  nation."  He 
concludes  with  a  careful  discussion  of  Canter's  Case,  show- 
ing that  the  decision  there  given  is  inconclusive  upon  this 
point. 

None  of  the  other  justices,  with  the  exception  of  Mr. 
Justice  Curtis,  considers  this  question  at  length,  though  it 
is  necessarily  briefly  referred  to  in  their  opinions.  Mr. 
Justice  Curtis,  dissenting,  takes  the  opposite  position  from 
the  Chief  Justice,  and  analyzes  his  contention  in  detail.  He 
says,  at  page  604 :  "In  the  argument  of  this  case  at  the  bar, 
it  was  justly  considered  by  all  the  counsel  to  be  necessary 
to  ascertain  the  source  of  the  power  of  Congress  over  the 
territory  belonging  to  the  United  States.  Until  this  is 
ascertained,  it  is  not  possible  to  determine  the  extent  of  that 
power.     On  the  one  side  it  was  maintained  that  the  Consti- 


54  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

tution  contains  no  express  grant  of  power  to  organize  and 
govern  what  is  now  known  to  the  laws  of  the  United  States 
as  a  Territory.  That  whatever  power  of  this  kind  exists,  is 
derived  by  implication  from  the  capacity  of  the  United 
States  to  hold  and  acquire  territory  out  of  the  limits  of  any 
State,  and  the  necessity  for  its  having  some  government. 
On  the  other  side,  it  was  insisted  that  the  Constitution  has 
not  failed  to  make  an  express  provision  for  this  end,  and 
that  it  is  found  in  the  third  section  of  the  fourth  Article  of 
the  Constitution."  This  language  shows  clearly  two  things : 
first,  that  the  source  of  the  power  to  govern  the  territory 
of  the  United  States  was  fully  argued  and  carefully  con- 
sidered ;  and  second,  that  it  was  regarded  as  a  question,  the 
decision  of  which  would  be  of  effect  in  relation  to  the  extent 
of  the  power  of  Congress  over  the  territory. 

Mr.  Justice  Curtis  then  enters  upon  a  historical  review. 
He  points  out  that  at  the  time  when  the  Constitution  was 
framed  and  adopted  the  cession  of  these  lands  by  the  various 
States  was  as  yet  incomplete.  North  Carolina  ceded  land 
in  1790,  and  Georgia  in  1802;  that  hence  this  Article  of  the 
Constitution  was  prospective  in  its  scope,  as  well  as  adapted 
to  an  existing  condition  of  affairs.  He,  however,  admits 
that  there  was  "a  confident  expectation  entertained  by  the 
other  States"  that  these  cessions  would  be  made.  In  view, 
then,  of  land  to  be  held  in  a  condition  other  than  Statehood, 
a  necessity  arises  for  a  provision  for  its  regulation.  This 
removes  a  great  deal  of  the  force  of  this  point,  and  rather 
adds  to  the  contention  of  the  other  side,  that  the  article  has 
reference  to  a  definite  object. 

"There  was  to  be  established,"  he  says,  "by  the  Consti- 
tution a  frame  of  government,  under  which  the  people  of  the 
United  States  and  their  posterity  were  to  continue  in- 
definitely. To  take  one  of  its  provisions,  the  language  of 
which  is  broad  enough  to  extend  throughout  the  existence 
of  the  Government,  and  embrace  all  territory  belonging  to 
the  United  States  throughout  all  time,  and  the  purposes 
and  objects  of  which  apply  to  all  territory  of  the  United 
States,  and  narrow  it  down  to  territory  belonging  to  the 
United  States  when  the  Constitution  was  framed,  while  at 
the  same  time  it  is  admitted  that  the  Constitution  contem- 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         55 

plated  and  authorized  the  acquisition,  from  time  to  time, 
of  other  and  foreign  territory,  seems  to  me  to  be  an  inter- 
pretation as  inconsistent  with  the  nature  and  purposes  of  the 
instrument,  as  it  is  with  the  language,  and  I  can  have  no 
hesitation  in  rejecting  it." 

We  have  sought  to  do  justice  to  the  arguments  given  on 
each  side.  Undoubtedly  in  our  efforts  to  condense,  we  have 
seriously  impaired  the  force  of  each ;  but  it  seems  clear  that 
Mr.  Justice  Curtis  does  not  meet  the  close  and  logical  anal- 
ysis of  the  able  opinion  of  the  eminent  Chief  Justice.  The 
historical  review  of  each  corresponds  very  closely,  but  even 
here  that  of  the  Chief  Justice  is  more  thorough ;  and,  in  the 
discussion  of  the  language  of  the  Article,  the  dissenting 
opinion  is  notably  weak — in  fact  an  answer  is  hardly 
attempted  to  the  powerful  considerations  referred  to  in  the 
so-called  opinion  of  the  Court. 

As  has  been  said  above,  subsequent  decisions  have  been 
inclined  to  disregard  the  express  words  of  the  fourth  Article, 
as  the  source  of  this  power,  and  to  consider  it  a  necessary 
result  of  the  power  to  acquire  territory.  However,  we  can 
hardly  regard  the  question  as  one  absolutely  concluded. 

It  has  seemed  worth  while  to  consider  this  question,  for 
the  sake  of  a  more  nearly  complete  view  of  the  subject,  but 
more  especially  because  the  language  of  the  Article,  so  often 
referred  to,  is  apparently  rather  limiting  in  its  grant  of 
power  to  Congress,  and  hardly  a  source  of  such  plenary 
authority  as  has  since  been  upheld  in  reference  to  the  terri- 
tory of  the  United  States.  That  it  is  significantly  different 
from  the  grant  of  "exclusive  legislation"  in  the  District  of 
Columbia  has  already  been  noted.  Surely  this  difference 
in  language  is  not  an  accident.  Mr.  Justice  Campbell's 
opinion,  at  page  514  of  this  same  case  {Dred  Scott  v.  Sand- 
ford),  may  be  cited  as  an  illustration  of  an  elaborate  argu- 
ment to  show  the  limitation  of  the  powers  of  Congress, 
granting  that  they  are  derived  from  this  Article. 

"In  the  discussions  in  both  Houses  of  Congress,"  says  Mr. 
Justice  Daniel,  at  page  498,  "at  the  time  of  adopting  this 
eighth  section  of  the  act  of  1820  [the  Missouri  Compro- 
mise], great  weight  was  given  to  the  peculiar  language  of 
this  clause,  viz.,  territory  and  other  property  belonging  to 


56  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

the  United  States,  as  going  to  show  that  the  power  of  dis- 
posing of  and  regulating,  thereby  vested  in  Congress,  was 
restricted  to  a  proprietary  interest  in  the  territory  or  land 
comprised  therein,  and  did  not  extend  to  the  personal  or 
political  rights  of  citizens  or  settlers,  inasmuch  as  this 
phrase  in  the  Constitution,  territory  or  other  property,' 
identified  territory  with  property,  and  inasmuch  as  citizens 
or  persons  could  not  be  property,  and  especially  were  not 
property  belonging  to  the  United  States.  And  upon  every 
principle  of  reason  or  necessity,  this  power  to  dispose  of  and 
to  regulate  the  territory  of  the  nation  could  be  designed  to 
extend  no  further  than  to  its  preservation  and  appropriation 
to  the  uses  of  those  to  whom  it  belonged,  viz. :  the  nation.'* 
And  a  little  further  on,  at  page  491,  he  says:  "J^"^^^ 
Madison,  in  the  year  18 19,  speaking  with  reference  to  the 
prohibitory  power  claimed  by  Congress,  then  threatening 
the  very  existence  of  the  Union,  remarks  of  the  language 
of  the  second  clause  of  the  third  section  of  Article 
IV  of  the  Constitution,  'that  it  cannot  be  well  extended 
beyond  a  power  over  the  territory  as  property,  and  the 
power  to  make  provisions  needful  or  necessary  for  the  gov- 
ernment of  settlers,  until  ripe  for  admission  into  the 
Union.'  " 

It  seems  clear  that  the  language  of  this  Article  may  well 
be  regarded  as  limiting  in  a  decided  measure  the  powers 
of  Congress  over  territory,  as  compared  with  what  such 
powers  may  be  held  to  include,  if  they  are  derived  from  the 
right  to  acquire  territory.  A  wider  construction  of  the 
Article  was  argued  for  in  this  case,  but  was  not  adopted, 
and  under  the  view  which  is  apparently  the  prevailing  one  at 
present,  we  cannot  but  come  to  the  conclusion  that  the 
right  to  acquire  territory,  regarded  as  the  source  of  the  right 
to  govern  it,  confers  upon  Congress  more  extensive  powers 
than  the  express  language  of  this  Article. 

This,  then,  is  the  result  at  which  we  arrive  from  these 
considerations :  That  there  has  been  a  divergence  of  opinion 
as  to  the  source  of  the  power  of  Congress  to  govern  the 
territory  of  the  United  States,  some  regarding  it  as  derived 
from  the  third  section  of  the  fourth  Article  of  the  Consti- 
tution, others  considering  it  a  necessary  consequence  of  the 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         57 

power  to  acquire  territory ;  that  at  present  authority  tends  to 
support  the  latter  view;  that  under  the  construction  of  the 
Article  which  has  received  the  greatest  sanction,  this  present 
view  of  the  Court  gives  to  Congress  wider  power  over  the 
territory  than  would  be  possessed  were  the  express  language 
of  the  Article  the  sole  source  of  this  power. 

To  discuss  the  limits  of  this  power,  as  thus  derived  from 
the  power  to  acquire  territory,  will  require  our  attention 
subsequently,  but  first  we  desire  to  consider  briefly,  as  pre- 
paratory to  this 

C.  The  General  Mode  of  the  Exercise  of  This  Power  by 
Congress. 

It  is  not  intended  here  to  enter  into  a  view  of  the  general 
organization  of  territorial  governments,  but  merely  to  out- 
line the  manner  in  which  the  power  of  Congress  over  the 
territory  of  the  United  States  is  exercised  through  legisla- 
tion, in  order  that  it  may  more  clearly  appear  what  relation 
such  legislation  bears  to  the  test  of  constitutionality.  This 
will  make  possible  a  more  systematic  and  more  accurate 
study  of  the  limitations  of  this  legislative  power. 

The  power  of  Congress  may  be  exercised  either  directly 
or  mediately.  Under  a  general  act,  called  the  organic  act, 
the  Territory  is  usually  organized  out  of  the  possessions  of 
the  United  States,  when  the  inhabitants  thereof  are  suf- 
ficiently capable  of  limited  self-government.  Under  such 
an  act  the  three  great  departments,  executive,  legislative  and 
judicial  are  kept  distinct,  and  powers  of  local  government 
are  conferred.  Under  the  "Revised  Statutes  of  the  United 
States  of  1878,"  section  1851 :  "The  legislative  power  of 
every  Territory  shall  extend  to  all  rightful  subjects  of  legis- 
lation not  inconsistent  with  the  Constitution  of  the  United 
States.  But  no  law  shall  be  passed,  interfering  with  the 
primary  disposal  of  the  soil.  No  tax  shall  be  imposed  on 
the  property  of  the  United  States,  nor  shall  the  lands  or 
other  property  of  non-residents  be  taxed  higher  than  the 
lands  of  residents."  Other  restrictions  may  be  embodied 
by  Congress  in  this  organic  act  and  it  then  becomes  the 
constitution,  as  it  were,  of  the  Territory  (National  Bank  v» 


58  THE   CONSTITUTIONAL   POWER   OF   CONGRESS 

County  of  Yankton,  loi  U.  S.  129,  1879,  at  page  133)  and 
just  as  the  legislation  of  Congress  is  tested  by  its  consistency 
with  the  National  Constitution,  so  the  acts  of  the  Territorial 
legislature  are  valid  only  so  far  as  they  fall  within  the 
powers  conferred  by  the  organic  act.  It  will  be  noticed 
that  under  this  general  statute  the  acts  of  the  Territorial 
legislature  are  expressly  limited  by  the  provisions  of  the 
Federal  Constitution.  It  is  important  to  remember  this 
enactment  in  reference  to  the  decisions  with  respect  to  the 
question  of  the  competency  of  the  Territorial  governments 
to  pass  certain  acts  under  the  Federal  Constitution.  The 
Court  may  consider  directly  the  justification  to  be  found  in 
the  Constitution,  but  this  is  far  from  deciding  the  important 
question  whether  the  Constitution  applies  immediately  or 
only  in  consequence  of  the  legislation  of  Congress. 

This  organic  act,  the  fundamental  law  of  the  Territory, 
is  itself  subject  to  the  question  of  constitutionality,  but  so 
long  as  it  is  confined  to  the  subjects  of  legislation  enumer- 
ated in  this  general  enactment,  its  constitutionality  can 
hardly  be  doubted.  The  delegation  of  power,  however,  has 
its  limits.  Clearly  Congress  may  not  delegate  power  the 
exercise  of  which  is  confided  exclusively  to  itself.  These 
powers  it  must  itself  exercise,  and  its  power  of  providing 
the  fundamental  law  for  the  government  of  the  territory  of 
the  United  States,  does  not  authorize  it  to  delegate  to  a 
Territorial  government  to  be  exercised  thereby  any  of  these 
great  national  powers  vested  in  Congress.  Thus  we  may 
cite  the  case  of  Stoutenburgh  v.  Hennick,  129  U.  S.  141, 
1889.  Power  of  legislation  had  been  conferred  upon  the 
District  of  Columbia,  no  more  restricted  so  far  as  the  ques- 
tion in  that  case  was  concerned  than  the  legislative  power 
of  the  Territories  under  the  general  enactment  cited  above. 
The  District  had  imposed  "a  license  on  trades,  business  and 
professions  practiced  or  carried  on  in  the  District  of  Co- 
lumbia" and  required  among  other  things,  commercial 
agents,  whose  business  it  was  to  ofTer  merchandise  for  sale 
by  sample  to  pay  such  license.  Such  a  tax,  when  applied 
to  a  commercial  traveler  engaged  in  negotiating  sales  be- 
tween a  point  within  and  a  point  without  the  State,  had  been 
decided  to  be  a  regulation  of  interstate  commerce  within  the 


OVER   THE   TERRITORY   OF   THE    UNITED   STATES.         59 

exclusive  control  of  Congress.  (Robbins  v.  Shelby  County 
Taxing  District,  120  U.  S.  489,  1887.)  It  was  held  that 
power  to  impose  such  a  tax  could  not  be  delegated  to  the 
legislative  assembly  of  the  District,  under  the  power  of 
Congress  to  exercise  exclusive  legislation  "in  all  cases  what- 
soever," and  the  act  of  the  assembly  under  its  general  power 
of  legislation  was  held  to  be  invalid  when  applied  to  such 
commercial  agents  as  being  beyond  the  power  of  Congress 
to  authorize.  The  principle  of  this  case  is  directly  applic- 
able to  the  Territories,  and  establishes  the  rule  that  in  regard 
to  those  powers  which  under  the  Constitution  have  been 
entrusted  to  Congress  for  the  benefit  of  the  whole  country, 
and  are  national  in  character,  no  act  of  Congress  can  con- 
stitutionally authorize  their  exercise  by  the  legislative  body 
of  the  Territory,  or  the  District  of  Columbia.  This  limita- 
tion, however,  upon  the  power  of  Congress,  applies  to  its 
efforts  to  exercise  its  legislative  control  over  the  Territories 
mediately,  and  has  no  reference  to  its  direct  enactments  in 
regard  to  the  Territory. 

Congress  may,  of  course,  instead  of  organizing  a  Ter- 
ritorial government,  retain  to  itself  the  full  control  over 
its  possessions  and  exercise  all  its  authority  directly,  but 
the  usual  course  is  the  organization  of  a  Territorial  govern- 
ment, and  where  this  is  done  the  ordinary  affairs  of  the 
Territory  are  entrusted  for  their  regulation  to  the  enact- 
ments of  the  Territorial  legislature.  The  great  mass  of 
private  rights  are  secured  in  this  way.  But  there  always 
exists  in  Congress  the  power  to  alter  at  its  will  the  law  of 
the  Territory  upon  any  point,  or  to  legislate  directly  in 
regard  to  any  matters  it  may  choose,  subject  only  to  such 
general  limitations  as  may  be  found  to  exist  with  reference 
to  its  power  over  the  territory  of  the  United  States.^     So, 

'  So  in  National  Bank  v.  County  of  Yankton,  loi  U.  S.  129,  1879,  at 
page  133,  it  is  said :  "Congress  may  not  only  abrogate  laws  of  the  Ter- 
ritorial legislatures,  but  it  may  itself  legislate  directly  for  the  local  gov- 
ernment. It  may  make  a  void  act  of  the  Territorial  legislature  valid 
[v.  Utter  V.  Franklin,  172  U.  S.  423,  1899],  and  a  valid  act  void.  In 
other  words,  it  has  full  and  complete  legislative  authority  over  the 
people  of  the  Territories,  and  all  the  departments  of  the  Territorial 
governments.  It  may  do  for  the  Territories  what  the  people,  under 
the  Constitution  of  the  United  States,  may  do  for  the  States." 


60  THE    CONSTITUTIONAL    POWER   OF    CONGRESS 

if  it  should  deem  proper,  it  cannot  be  doubted  but  that 
Congress  could  abolish  the  local  government  of  the  Ter- 
ritory and  constitute  itself  the  legislative  body  for  all 
purposes.  It  is  therefore  perfectly  competent  for  Congress 
to  require  the  acts  of  the  Territorial  legislature  to  be  submit- 
ted to  itself,  and,  if  disapproved,  to  be  of  no  effect.  It  is  not 
difficult  to  refer  to  illustrations  of  the  exercise  of  the  direct 
authority  of  Congress  over  the  Territories.  Instances  will 
suggest  themselves.  The  question  of  polygamy  is  one  which 
has  given  to  the  reports  a  great  number  of  decisions  in 
reference  to  the  power  of  Congress  to  legislate  directly  for 
the  Territories. 

But  whether  this  authority  over  the  territory  of  the 
United  States  is  exercised  directly  or  mediately,  it  is  in  all 
cases  the  power  of  Congress.  The  Territories  possess  no 
governmental  rights  in  themselves.  The  organic  act,  which 
corresponds  to  a  State  constitution,  is  not  adopted  by  them- 
selves, but  is  imposed  upon  them  by  the  authority  of  Con- 
gress. The  power  there  conferred  is  not  alterable  at  the 
will  of  the  Territories,  but  all  their  acts  must  be  shown  to 
be  in  conformity  with  these  fundamental  acts  of  Congress. 
Congress  is  in  all  cases  the  real  government  of  the  Terri- 
tories, and  though  it  has  in  many  instances  delegated  this 
power  to  the  Territorial  legislature  it  is  merely  delegated 
power, 

A  point  of  procedure  well  illustrates  this:  in  Wallace  v. 
'Anderson,  5  Wheaton,  291,  1820,  Mr.  Chief  Justice  Mar- 
shall, delivering  the  opinion  of  the  Court,  decided  "that  a 
writ  of  quo  warranto  could  not  be  maintained  except  at  the 
instance  of  the  Government."  This  principle  appears  in  a 
later  case,  directly  illustrating  the  point  we  desire  to  make. 
In  Territory  v.  Lockwood,  3  Wallace,  236,  1865,  an  in- 
formation in  the  nature  of  a  quo  warranto  had  been  filed  in 
the  name  of  the  "Territory  of  Nebraska  on  relation  of,"  etc. 
And  it  was  held  that  such  process  must  issue  in  the  name  of 
the  United  States.  "The  right  to  institute  such  proceed- 
ings is  inherently  in  the  Government  of  the  nation."  And 
a  case  several  years  later  says:  "Strictly  speaking,  there  is 
no  sovereignty  in  a  Territory  of  the  United  States,  but  that 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         6 1 

of  the  United  States  itself."  {Snow  v.  United  States,  i8 
Wallace,  321,  1873.) 

Whatever  form,  therefore,  the  government  may  take,  the 
United  States  is  the  governing  power,  and  any  legislative 
bodies,  other  than  Congress,  are  mere  agencies.  Thus  in 
Snow  V.  United  States,  18  Wallace,  317,  1873,  ^^^  Justice 
Bradley,  in  discussing  the  question  as  to  whether  the 
attorney-general  of  the  Territory  or  the  district  attorney 
of  the  United  States  was,  under  the  facts  of  the  case,  the 
proper  prosecuting  officer,  recurs  to  the  fundamental  prin- 
ciples in  the  beginning  of  his  opinion.  "The  government 
of  the  Territories  of  the  United  States  belongs,  primarily, 
to  Congress;  and  secondarily,  to  such  agencies  as  Congress 
may  establish  for  that  purpose.  During  the  term  of  their 
pupilage  as  Territories,  they  are  mere  dependencies  of  the 
United  States.  Their  people  do  not  constitute  a  sovereign 
power.  All  political  authority  exercised  therein  is  derived 
from  the  General  Government.  It  is,  indeed,  the  practice 
of  the  Government  to  invest  these  dependencies  with  a 
limited  power  of  self-government  as  soon  as  they  have 
sufficient  population  for  the  purpose.  The  extent  of  the 
power  thus  granted  depends  entirely  upon  the  organic  act 
of  Congress  in  each  case,  and  is  at  all  times  subject  to  such 
alterations  as  Congress  may  see  fit  to  adopt." 

This  fact,  that  the  acts  of  the  Territorial  legislature  are 
in  reality  only  a  manifestation  of  the  power  of  Congress,  is 
important  in  this  respect,  because  if  Congress,  in  its  legisla- 
tion for  the  Territories,  is  limited  by  those  restrictions  ex- 
pressed in  the  Constitution  with  reference  to  its  power  to 
affect  individual  rights,  so  the  Territory  is  limited  in  the 
same  respect,  for  Congress  could  delegate  to  its  agency  no 
right  to  transgress  the  limits  placed  about  itself.  But  if 
Congress,  in  relation  to  the  inhabitants  of  the  territory  of 
the  United  States,  is  not  limited,  as  it  is  in  relation  to  the 
inhabitants  of  the  States,  on  no  principle  can  the  Territorial 
legislature  be  regarded  as  so  limited,  if  sufficient  authority  is 
conferred  by  its  organic  act. 

It  is  significant  to  note,  here,  that  the  general  act  quoted 
above  specifically  disallows  any  action  on  the  part  of  the  Ter- 
ritory contrary  to  the  Constitution  of  the  United  States.  Of 


62  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

what  use  is  this  language,  if  Congress  in  reference  to  the  Ter- 
ritories is  subject  to  the  same  restrictions  as  in  reference  to 
its  other  legislation?  If  it  is  so  subject,  the  Territory,  as  a 
matter  of  necessity,  is  likewise  restrained  within  the  same 
limits.  (Dred  Scott  v.  Sandford,  19  Howard,  451,  1856.) 
It  seems  clearly  to  indicate  that,  in  the  judgment  of  Con- 
gress, it  is  not  restrained  by  these  limitations.  Of  course, 
the  opinion  of  Congress  is  by  no  means  decisive  upon  such 
a  question,  but  in  this  connection  it  is  certainly  worthy  of 
note. 

The  power,  then,  over  the  territory  of  the  United  States 
is  of  but  one  kind,  that  is,  the  power  of  Congress ;  and  how- 
ever it  may  appear,  it  always  must  meet  the  first  test  of 
whether  it  is  competent  for  Congress  to  enact  such  legisla- 
tion. If  passed  by  the  Territory,  it  has  still  further  to 
undergo  the  test  of  conformity  to  the  organic  act.  This 
brings  us  to  the  conclusion  that  the  discussion  in  various 
cases  as  to  the  power  of  the  Territory  to  pass  certain  acts 
under  the  Constitution,  and  not  as  falling  within  the  scope 
of  its  organic  act,  has  direct  application  to  the  question  of 
the  power  of  Congress  itself  to  pass  such  legislation;  and 
the  discussion  of  the  limitations  of  Territorial  power,  flow- 
ing not  from  the  organic  act  but  extra  that  act,  is  of 
immediate  importance  as  respects  the  limitations  on  Con- 
gress. The  two  questions  constitute  in  reality  but  one, 
and,  except  that  the  Territorial  legislation  is  restricted  by 
the  organic  act,  must  be  decided  on  the  same  principles. 
This  must  be  constantly  remembered  in  dealing  with  the 
cases,  as  otherwise  it  might  seem  that  two  questions  are 
involved,  and  that  the  cases  referred  to  are  of  two  distinct 
classes.  The  unity  of  the  authority  over  the  territory  of 
the  United  States,  however,  consolidates  the  cases,  and 
makes  them  of  direct  bearing  upon  the  single  question  of 
how  far  Congress  is  limited  in  its  legislation  with  regard 
to  the  territory  of  the  United  States. 

This  brings  us  to  a  position  where  we  can  enter  more 
readily  into  a  study  of  this  difficult  question,  but  before 
we  take  up  the  cases  in  reference  to  this  point,  it  is  of  im- 
portance to  note 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         63 

D.  The  Source  of  the  Limitations  on  the  Power  of  Con- 
gress over  the  Territory  of  the  United  States — 

if  any  such  exist.  That  the  power  to  govern  the  territory 
of  the  United  States  is  not  wholly  unlimited  seems  to  be  the 
consensus  of  the  decisions,  but  with  regard  to  the  extent  of 
the  limitations  a  greater  degree  of  uncertainty  arises,  and 
it  is  believed  that  it  may  assist  in  the  study  of  this  point  to 
consider  whence  any  existing  limitations  arise. 

Congress  possesses  power  to  govern  the  territory  of  the 
United  States,  not  as  derived  from  the  inhabitants  of  this 
territory,  but  from  the  people  of  the  United  States,  who 
have  delegated  this  power  to  Congress  in  the  National  Con- 
stitution. By  the  "people  of  the  United  States"  is  here 
meant  the  people  of  the  States,  composing  the  Federal 
Union.  They  alone  have  adopted  the  Constitution;  the 
inhabitants  of  the  territory  of  the  United  States  have  in  no 
manner  concurred  in  delegating  the  power  to  Congress. 
With  the  people  of  the  several  States  resides  the  power  of 
amending  the  Federal  Constitution,  and  to  this  the  inhabi- 
tants of  the  territory  can  oppose  no  resistance  but  that  of 
persuasion  and  force.  These  overcome,  there  seems  to  be 
no  reason  why  it  is  not  within  the  power  of  the  people  of 
the  several  States  to  adopt  such  amendments  as  to  place  in 
Congress  supreme  and  unlimited  power  over  the  territory 
of  the  United  States  and  its  inhabitants.  Naturally  no  one 
expects  this  to  be  done,  and  doubtless  it  never  will,  but  it 
serves  to  illustrate  the  point  we  desire  to  make ;  that  what- 
ever limitations  of  the  power  of  Congress  over  the  territory 
of  the  United  States  exist,  spring  from  the  will  of  the 
people  of  the  States,  who  have  adopted  the  Constitution, 
and  not  from  the  will  of  the  people  who  are  to  be  subject 
to  this  territorial  power.  Consequently,  in  considering  the 
extent  of  these  limitations,  the  inquiry  must  be  into  the 
scope  of  the  limitations  on  the  power  of  Congress  intended 
by  those  who  have  adopted  the  Constitution  as  this  inten- 
tion is  expressed  in  the  language  of  the  instrument.  That 
they  should  desire  to  restrain  their  legislative  body  from 
interference  with  the  primary  rights  of  all  individuals  seems 
entirely  possible,  but  not  nearly  so  certain  as  that  they 


64  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

should  have  intended  to  prevent  that  Government  from  in- 
terfering with  their  own  rights.  Whatever  therefore  may 
be  said  abstractly  of  the  inherent  and  inalienable  rights  of 
man  as  above  and  beyond  the  gift  of  any  government,  may 
be  of  great  weight  in  determining  whether  the  ''people  of 
the  United  States''  in  adopting  the  Constitution  intended  its 
safeguards  of  personal  liberty  and  private  property  to  be  of 
effect  in  the  territory  of  the  United  States ;  but  the  argument 
cannot  be  made  that  these  are  powers  never  granted  by  the 
inhabitants  of  the  territory  of  the  United  States,  since  no  one 
of  the  powers  of  Congress  over  such  territory  is  derived 
from  the  inhabitants  thereof,  but  all  are  derived  from  the 
inhabitants  of  the  States. 

The  power  of  Congress,  then,  over  the  territory  of  the 
United  States  is  limited  by  the  will  of  the  people  of  the 
several  States,  and  it  is  to  be  a  question  of  what  the  people 
of  these  United  States  (using  the  term  as  exclusive  of  the 
territory  of  the  United  States)  have  "willed"  in  reference 
to  limiting  this  power  that  we  now  desire  to  turn.  Sov- 
ereign and  unlimited  power  over  the  territory  of  the  United 
States  does  exist  in  the  people  of  the  several  States,^  united 
in  the  Federal  Government,  and  the  question  is  whether 
they  have  conferred  this  power  on  Congress  absolutely  or 
qualifiedly. 

E.  The  Limitations  of  the  Power  of  Congress  over  the 
Territory  of  the  United  States. 

In  the  Constitution  it  frequently  happens  that  the  grant 
of  powers  is  in  general  terms,  and  the  same  is  true  of  the 
limitations  on  such  powers.  In  some  parts,  however,  the 
language  is  more  definite  in  reference  to  their  application 
than  in  others.     We  desire  to  consider  first  this  latter  class 

•  See  the  language  of  the  Court  in  Murphy  v.  Ramsey,  114  U.  S.  15, 
1885,  at  page  44 :  "The  people  of  the  United  States,  as  sovereign  owners! 
of  the  National  Territories,  have  supreme  power  over  them  and  their 
inhabitants.  In  the  exercise  of  this  sovereign  dominion,  they  are  repre- 
sented by  the  government  of  the  United  States,  to  whom  all  the  powers 
of  government  over  that  subject  have  been  delegated,  subject  only  to 
such  restrictions  as  are  expressed  in  the  Constitution,  or  are  necessarily 
implied  in  its  terms,  or  in  the  purposes  and  objects  of  the  power  itself." 


J 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         65 

of  passages  as  expressing  more  unmistakably  the  will  of  the 
people,  and  then  to  turn  to  the  more  general  question  of  how 
far  the  Constitution  itself  indicates,  by  its  language,  that  its 
general  provisions  are  to  be  co-extensive  with  the  States 
except  as  extended,  or  co-extensive  with  the  whole  dominion 
of  the  country  except  as  limited. 

Article  III,  section  2,  reads  (last  paragraph)  :  "The  trial 
of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury;  and  such  trial  shall  be  held  in  the  State  where  the 
said  crimes  shall  have  been  committed;  but  when  not  com- 
mitted within  any  State,  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  have  directed."  At  first 
glance  this  language  seems  to  be  of  general  application. 
The  first  clause  is  general  in  its  terms,  but  its  extent  is  more 
clearly  outlined  by  what  follows,  which  shows  that  crimes 
committed  outside  of  the  States  are  contemplated  by  the 
language  of  the  Article,  as  well  as  those  committed  within 
them.  This  apparently  makes  the  right  of  trial  by  jury 
a  necessity  in  all  crimes  tried  under  the  laws  of  the  Federal 
Government. 

But  it  should  be  remembered  that  this  paragraph  is  in 
the  Article  of  the  Constitution  dealing  with  the  judicial 
power  of  the  United  States,  and  occurring  in  this  connec- 
tion, a  natural  construction  would  restrict  it  to  the  pro- 
ceedings in  the  courts  of  the  United  States.  Now  the 
decisions  have  clearly  established  the  principle  that  the 
courts  of  the  Territories  are  not  necessarily  courts  of  the 
United  States,  but  are  so-called  legislative  courts,  estab- 
lished in  virtue  of  the  power  of  Congress  to  legislate  for  the 
territory  of  the  United  States.  We  shall  need  to  refer  to 
this  question  more  in  detail  when  we  take  up  the  judicial 
construction  of  various  passages  of  the  Constitution,  but 
we  may  cite  at  this  point,  as  the  leading  case  with  refer- 
ence to  this  question,  American  Insurance  Co.  v.  Canter, 
I  Peters,  511,  1828.  It  is  quite  possible  to  conceive  that 
"courts  of  the  United  States"  might  be  established  in  the 
territory  of  the  United  States  under  this  third  Article  of 
the  Constitution,  but  that  this  is  not  the  only  source  of  the 
power  of  Congress  to  establish  territorial  courts  is  un- 
doubted. 


66  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

Since,  then,  these  other  courts  are  estabHshed  in  virtue  of 
other  powers,  so  far  as  the  language  here  used  is  concerned, 
it  cannot  be  regarded  as  conclusive  upon  this  point,  because 
the  context  seems  to  indicate  its  connection  with  the  courts 
there  authorized  alone.  Hence  we  cannot  regard  the 
Article  as  defining  decisively  its  own  scope ;  the  natural  in- 
terpretation would  be  to  confine  it,  in  its  application,  to  the 
subject  matter  of  the  rest  of  the  Article,  and  therefore 
determining  a  rule  of  procedure  required  by  this  clause  only 
in  the  so-called  courts  of  the  United  States.  More  detailed 
review  of  its  scope  must  be  postponed,  since  we  are  now 
dealing  simply  with  the  language  of  the  Constitution.'*' 

In  Article  VI  of  the  Amendments  we  find  language  which 
seems  plainly  indicative  of  its  own  scope:  "In  all  criminal 
prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,  and  to 
be  informed  of  the  nature  and  cause  of  the  accusation ;  to  be 
confronted  with  the  witnesses  against  him;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and  to 
have  the  assistance  of  counsel  for  his  defence."  The  phrase 
"of  the  State  and  district  wherein,"  etc.,  apparently  confines 
this  Amendment  to  crimes  committed  within  a  State,  which 
must,  under  its  provisions,  be  tried  by  the  United  States 
Court  of  that  district  where  the  crime  is  against  the  United 
States.  Of  course,  these  first  ten  Amendments  apply  only 
as  restrictions  on  the  legislation  of  Congress  (Barron  v. 
Baltimore,  7  Peters,  243,  1833),  and  cannot  determine  the 
procedure  of  the  State  courts;  but  even  thus,  the  Article 
seems  clearly  to  provide  only  for  those  crimes  tried  under 
the  jurisdiction  of  the  United  States  which  have  been  com- 
mitted within  a  State.  For  the  jury  is  to  be  drawn  "from 
the  State  where  the  crime  has  been  committed,"  and  how 
could  this  language  apply  to  the  territory  of  the  United 
States? 

This  is  the  natural  construction,  and  there  are  authorities 
indicating  the  limitation  of  the  Article  to  the  States  as  the 

'  For  decisions  and  comments  v.  post,  p.  88  and  p.  91. 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         dj 

proper  view.  In  United  States  v.  Dawson j  15  Howard, 
467,  1853,  the  defendant  had  been  indicted  in  the  Circuit 
Court  of  the  United  States  for  an  alleged  murder  in  the 
Indian  Country  west  of  the  State  of  Arkansas.  It  was 
contended  that  the  place  of  trial  had  been  changed  since 
the  commission  of  the  crime,  contrary  to  the  Sixth  Amend- 
ment. Mr.  Justice  Nelson,  speaking  for  the  Court,  says: 
"But  it  will  be  seen  from  the  words  of  this  Amendment, 
that  it  applies  only  to  the  case  of  offenses  committed  within 
the  limits  of  a  State.  .  .  .  The  language  of  the  Amend- 
ment is  too  particular  and  specific  to  leave  any  doubt  about 
it."  And  in  Cook  v.  United  States,  138  U.  S.  157,  1891, 
Mr.  Justice  Harlan  says,  with  reference  to  the  Sixth 
Amendment  at  page  181 :  "That  Amendment  has  reference 
only  to  offenses  against  the  United  States  committed  within 
a  State/'  and  cites  United  States  v.  Dawson,  supra. 

And  yet  in  Reynolds  v.  United  States,  98  U.  S.  154, 
1878,  Mr.  Chief  Justice  Waite,  in  discussing  challenges 
which  had  been  made  by  the  defendant  to  certain  jurors, 
says  at  the  outset:  "By  the  Constitution  of  the  United 
States  (Amendment  VI),  the  accused  was  entitled  to 
a  trial  by  an  impartial  jury,"  and  this  was  with  reference 
to  a  crime  committed  in  the  Territory  of  Utah,  and  the 
case  was  heard  on  appeal  from  the  Supreme  Court  of  the 
Territory. 

Here  too,  then,  we  are  not  entirely  confident  that  the 
scope  of  the  Article  is  limited  by  the  apparent  boundaries 
of  its  language,  though  the  case  of  United  States  v.  Dawson 
is  a  clear  authority  that  that  part  of  the  Amendment  with 
reference  to  the  place  of  trial  being  previously  ascertained 
refers  only  to  crimes  against  the  United  States  committed 
within  a  State.  Whether  a  different  construction  should  be 
placed  on  the  other  provisions  of  the  Article  is  made  a  little 
doubtful  by  the  language  of  Chief  Justice  Waite  quoted 
above.  It  seems,  however,  difficult  on  principle  to  construe 
the  different  parts  of  this  one  Article  as  of  different  extent; 
and  the  natural  interpretation  of  the  language  would,  ap- 
parently, bind  them  together  and  require  a  uniform  inter- 
pretation.® 

*  However,  v.  post,  pp.  88  and  91. 


68  THE   CONSTITUTIONAL   POWER   OF   CONGRESS 

The  Thirteenth  Amendment  is  clearly  of  application 
throughout  the  possessions  of  the  United  States.  ''Neither 
slavery  nor  involuntary  servitude,  except  as  a  punishment 
for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction/'  is  the  language  of  this  Amendment. 
The  territory  of  the  United  States  is  clearly  a  "place  subject 
to  the  jurisdiction' '  of  the  United  States.  The  origin  of 
this  word  gives  a  clear  idea  of  its  content.  The  power 
having  the  right  to  declare  the  law  (jus  dicer e)  is  the 
power  having  jurisdiction,  and  this  power  resides  in  the 
United  States.  If  the  rights  of  a  foreigner  under  inter- 
national law  were  infringed,  within  any  of  the  territory  of 
the  United  States,  his  government  would  clearly  have  the 
right  to  reparation  from  the  United  States  for  his  injuries, 
on  the  ground  that  its  citizen  or  subject  had  been  injured 
within  the  jurisdiction  of  the  United  States.  This  terri- 
tory, being,  therefore,  a  place  within  the  jurisdiction  of  the 
United  States,  under  the  Thirteenth  Amendment  it  is  ex- 
pressly forbidden  that  slavery  or  involuntary  servitude, 
except  as  provided,  should  exist  within  its  borders.  The 
people  of  the  United  States,  who  have  adopted  the  Consti- 
tution, and  by  whose  authority  it  exists,  have  so  willed  it, 
and  have  expressed  their  will  in  clear  terms. 

But  the  language  here  used  is  very  suggestive.  The 
words  show  that  a  place  may  be  "subject  to  the  jurisdiction 
of  the  United  States,"  without  being  "within  the  United 
States,"  and  the  question  naturally  arises:  What  is  meant 
to  be  included  by  the  term  "United  States"  as  used  in  the 
Constitution?  Is  it  inclusive  of  the  States  and  their  pos- 
sessions or  merely  of  the  States?  This  is  all  the  more  of 
interest  because  in  the  preamble  to  the  Constitution  we  find 
the  language :  "We,  the  people  of  the  United  States,  in  order 
to  .  .  .  secure  the  blessings  of  liberty  to  ourselves 
and  our  posterity,  do  ordain  and  establish  this  Constitution 
for  the  United  States  of  America."  If,  then,  we  had  a 
definite  statement  as  to  what  the  "United  States  of  America" 
in  this  phrase  is  intended  to  include,  since  we  are  expressly 
told  that  the  intention  of  the  people  is  to  ordain  and  establish 
this  Constitution  "for  the  United  States  of  America,"  we 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         69 

should  be  able  to  assign  at  once  the  limits  to  the  operation 
of  such  of  its  language  as  is  without  express  qualification. 
The  words  ''United  States"  are  twice  used  in  the  preamble. 
First  it  is  the  "people  of  the  United  States"  who  establish 
this  Constitution.  The  people  of  the  then  territory  had  no 
voice  in  its  adoption,  for  it  is  an  undoubted  historical  fact 
that  it  derived  its  authority  from  the  ratification  of  the 
people  of  the  several  States  alone.  The  "United  States" 
here,  then,  would  seem  to  be  exclusive  of  everything  but  the 
States.  It  is  not,  "We,  people  of  the  United  States,"  but 
"We,  the  people  of  the  United  States,"  implying  that  only 
the  people  of  the  States  were  people  of  the  United  States, 
since  to  them  alone  was  the  Constitution  to  be  submitted. 

This  language  is  referred  to  by  the  Court  in  In  re  Ross, 
140  U.  S.  453,  1 89 1.  In  that  case  the  petitioner  (the  case 
was  a  habeas  corpus  proceeding)  asked  for  release  claiming 
that  he  had  been  tried  without  the  constitutional  require- 
ment of  presentment  by  a  grand  jury,  and  trial  by  a  petit 
jury.  He  had  committed  murder  on  an  American  vessel, 
and  was  tried  by  the  American  Consular  Court  in  Japan. 
Mr.  Justice  Field,  in  discussing  his  claim,  says,  at  page  464 : 
"By  the  Constitution  a  government  is  ordained  and  estab- 
lished 'for  the  United  States  of  America,'  and  not  for  coun- 
tries outside  their  limits.  The  guaranties  it  affords  against 
accusation  of  capital  or  infamous  crimes,  except  by  indict- 
ment or  presentment  by  a  grand  jury,  and  for  an  impartial 
trial  by  a  petit  jury  when  thus  accused,  apply  only  to  citizens 
and  others  within  the  United  States,  or  who  are  brought 
there  for  trial  for  alleged  offenses  committed  elsewhere,, 
and  not  to  residents  or  temporary  sojourners  abroad."  It 
will  be  noted  that  the  case  does  not  deal  with  a  crime  com- 
mitted within  a  part  of  the  territory  of  the  United  States,, 
but  it  does  have  direct  reference  to  a  crime,  to  the  punish- 
ment of  which  the  authority  of  the  United  States  extended ; 
and  the  case  is  clear  to  the  point  that  the  authority  of  the 
United  States  and  the  constitutional  guaranties  are  not 
necessarily  co-extensive  outside  of  the  "United  States.*' 
But  as  to  the  precise  scope  of  this  term  we  are  still  left  in 
doubt.  We  are  assured,  however,  that  these  guaranties  are 
necessarily  operative  only  in  "the  United  States." 


yO  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

The  words  of  the  preamble,  ''to  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity''  seem  to  support  the 
view  that  it  is  not  with  a  purpose  of  securing  these  ''bless- 
ings" to  their  territory  that  the  instrument  is  adopted. 
They  were  at  the  time  possessed  of  territory,  and  it  would 
not  have  been  overlooked ;  yet  since  no  inhabitants  of  the  ter- 
ritory could  be  included  among  the  "we"  who  adopt,  so  the 
"blessings  of  liberty"  do  not  seem  to  be  intended  to  be 
secured  to  them  through  this  instrument,  for  they  cannot 
come  within  the  term  "ourselves,"  which  is  co-extensive 
with  the  "we." 

Whether,  then,  the  phraseology  of  the  Thirteenth 
Amendment  is  intended  to  show  that  the  "United  States," 
as  distinguished  from  a  "place  subject  to  the  jurisdiction 
of  the  United  States,"  does  or  does  not  include  the  terri- 
torial possessions  of  the  United  States  cannot  be  said  to 
be  concluded  by  the  language  of  the  instrument,  though 
the  words  of  the  preamble  support  the  view  that  this  term 
does  not  include  such  possessions. 

Judicial  construction  of  this  language  is  very  hard  to 
find.  In  the  case  of  Loughborough  v.  Blake,  5  Wheaton, 
317,  1820,  Chief  Justice  Marshall,  in  discussing  the  clause 
in  the  Constitution  as  to  the  uniformity  of  taxation,  in  refer- 
ence to  the  District  of  Columbia,  says,  speaking  of  the  ex- 
tent of  the  words,  "United  States" :  "Does  this  term  desig- 
nate the  whole,  or  any  particular  portion  of  the  American 
empire?  Certainly  this  question  can  admit  of  but  one 
answer.  It  is  the  name  given  to  our  great  republic,  which 
is  composed  of  States  and  Territories.  The  District  of  Co- 
lumbia, or  the  territory  west  of  the  Missouri,  is  not  less 
within  the  United  States  than  Maryland  or  Pennsylvania." 
And  in  the  Dred  Scott  Case,  Chief  Justice  Taney,  in  dis- 
cussing the  power  of  Congress  over  the  territory  of  the 
United  States,  seems  to  concur  in  this  view,  when  he  uses 
the  words:  "The  Territories  being  a  part  of  the  United 
States." 

A  more  recent  case  dealing  with  the  question  of  the  extent 
of  the  term  "United  States"  was  decided  last  June  (1900), 
in  the  Circuit  Court  for  the  Southern  District  of  New 
York.     It  arose  in  reference  to  the  present  Porto  Rican 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         7 1 

tariff — importers  of  goods  from  Porto  Rico  to  New  York 
having  refused  to  pay  the  tax.  Their  contention  was  that 
Porto  Rico  was  a  part  of  the  United  States,  that  throughout 
the  United  States  taxes  must  be  uniform,  and  hence  that  the 
tax  in  question  was  unconstitutional,  since  goods  from  Porto 
Rico  were  taxed  when  shipped  to  New  York,  while  no  such 
tax  could  be  imposed  had  they  been  shipped  from  any  State 
of  the  Union. 

The  decision  is  based  on  the  interpretation  of  the  term 
"United  States."  The  Circuit  Judge,  Judge  Townsend, 
admits  that  Porto  Rico  ''is  now  a  part  of  our  dominion, 
undistinguishable  from  any  other  part  of  the  United  States, 
so  far  as  other  powers  are  concerned"  But  it  is  an  en- 
tirely different  question,  he  claims,  whether  such  acquisi- 
tion determines  that  the  acquired  territory  shall  be  incor- 
porated as  an  integral  part  under  its  organic  law.  This,  it 
is  held,  is  for  the  determination  of  Congress  either  in  the 
exercise  of  its  treaty-making  power  or  by  general  legislative 
provisions.  Such  stipulations  of  incorporation  with  the 
Union  have,  it  is  pointed  out,  formed  parts  of  the  treaties 
of  cession  of  the  other  acquisitions  of  the  United  States, 
while  in  the  case  of  Porto  Rico  they  are  notably  absent. 
The  people  of  this  island,  then,  "instead  of  being  incorpo- 
rated into  the  Union  by  the  treaty,  are  left  in  statu  quo/' 
And  until  such  incorporation  on  the  part  of  Congress,  the 
island,  though  a  part  of  the  United  States  as  a  political 
entity,  is  still  a  foreign  country  with  respect  to  the  United 
States  in  the  view  of  the  provisions  of  the  Constitution  with 
regard  to  commerce,  and  this  may  be  regulated  by  Congress 
without  regard  to  the  requirement  of  uniformity. 

The  judge  refers  to  the  case  of  Cross  v.  Harrison,  i6 
Howard,  164,  1853,  where  Mr.  Justice  Wayne  had  said: 
"By  the  ratification  of  the  treaty  California  became  a  part 
of  the  United  States,"  but  Judge  Townsend  contends  that 
"it  is  not  at  all  certain  that  these  words  of  Mr.  Justice 
Wa3me  do  not  mean  simply  that  as  to  foreign  nations  Cali- 
fornia had  become  a  part  of  the  United  States  by  perfected 
title  and,  therefore,  foreigners  could  not  violate  there  the 
law  allowing  them  liberty  to  trade  with  the  United  States 
under  specified  conditions."     And  he  refers  to  the  treaty, 


72  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

the  provisions  of  which  contemplate  the  incorporation  of 
CaHfornia  as  part  of  the  United  States  even  with  reference 
to  internal  relations,  keeping  in  line  with  his  general  theory 
that  incorporation  must  be  by  some  act  on  the  part  of  Con- 
gress. 

This  theory,  laid  down  in  Goetze  &  Co.  v.  United  States, 
103  Fed.  72,  1900,  is  admitted  to  be  an  "unfamiliar  propo- 
sition," but  the  judge  claims  that  it  is  so  because  ''we  have 
never  before  had  occasion  to  use  the  power  [to  hold  terri- 
tory without  incorporating  it  as  an  integral  part  under  our 
organic  law]  to  the  same  extent."  Such  power,  it  is  claimed, 
inheres  in  the  Government  of  the  United  States  as  "^an 
ordinary  attribute  of  sovereignty,"  thus  incidentally 
strengthening  our  contention  as  to  the  source  of  the  power 
to  acquire  territory. 

We  find  here  a  principle  which  may  be  used  to  explain  the 
relations  of  the  Government  with  her  new  possessions. 
Whether  it  will  prevail,  of  course,  remains  to  be  seen,  since 
this  is  only  a  lower  court  case.  But  we  have  here  clearly 
an  implied  admission  that  if  the  territory  of  the  United 
States  be  regarded  as  part  thereof,  it  is  to  be  governed  under 
the  provisions  of  the  Constitution  wherever  applicable.  The 
case  proceeds  upon  an  interpretation  of  the  scope  of  the  term 
"United  States,"  and  rests  its  decision  upon  the  ground  that 
with  reference  to  the  extent  of  the  organic  law,  the  island 
of  Porto  Rico  is  not  part  of  the  United  States,  and  can 
become  so  only  by  action  on  the  part  of  Congress. 

Loughborough  v.  Blake,  supra,  is  referred  to  in  this  case, 
and  its  language,  quoted  above  (p.  70),  is  held  inapplicable 
since,  with  reference  to  the  territory  then  held,  the  treaties 
by  which  it  had  been  acquired  had  stipulated  for  its  incor- 
poration into  the  Union.  This  case  seems  to  regard  the  old 
Territories  integral  parts  of  the  Union,  and  hence  within 
the  general  provisions  of  the  Constitution,  but  it  claims  that 
the  new  possessions  have  not  been  so  incorporated,  and 
until  this  shall  have  been  done  they  connot,  it  is  held,  be 
regarded  as  immediately  contemplated  by  the  general  pro- 
visions of  the  Constitution. 

This  decision  is  with  reference  to  the  uniformity  of  taxa- 
tion clause  of  the  Constitution.     Whether  greater  readiness 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         73 

to  place  restraints  upon  the  action  of  Congress  would  pre- 
vail in  the  case  where  the  personal  or  proprietary  rights 
of  the  inhabitants  of  the  new  territory  were  more  immedi- 
ately involved  was  not  a  question  requiring  decision  in  this 
case.  But  that  such  legislation  would  be  more  closely  scru- 
tinized by  the  Court  and  be  required  to  meet  with  certain 
t  sts  appears  to  be  the  opinion  of  this  Circuit  Judge  in 
hmguage  to  which  we  shall  subsequently  refer.  The  basis 
of  this  decision,  distinguishing  the  new  territory  from  the 
old,  incidentally  lends  its  weight  to  support  the  view  that  this 
old  territory  is  at  present  (under  the  provisions  of  the 
various  treaties  in  Judge  Townsend's  view)  a  part  of  the 
United  States. 

At  this  point  we  notice,  as  illustrative,  in  a  measure,  of  the 
view  of  Congress,  the  style  of  various  acts,  for  example, 
the  Act  of  February  26,  1885,  23  Stat.  332,  c.  164,  "to  pro- 
hibit the  importation  and  migration  of  foreigners  and  aliens 
under  contract  or  agreement  to  perform  labor  in  the  United 
States,  its  Territories  and  the  District  of  Columbia/'  appar- 
ently excluding  these  latter  from  inclusion  under  the  "United 
States."  This  bill  being  with  reference  to  a  subject  national 
in  character  might  well  be  held  as  extending  throughout 
the  dominions  of  the  United  States,  by  virtue  of  the  general 
term  "United  States,"  unless  there  were  serious  doubt  in 
the  mind  of  Congress  as  to  such  interpretation  being  justi- 
fied.®    Perhaps  much  weight  is  not  due  to  this  indirect 

"  (The  following  note  has  been  written  after  the  award  of  the  prize  for 
this  essay,  and  has  been  added  at  the  suggestion  of  a  member  of  the 
Law  Faculty  of  the  University  of  Pennsylvania.  No  original  research 
has  been  attempted,  but  the  effort  has  been  to  give  in  a  very  brief  space 
a  short  resume  of  the  Administrative  Construction  of  the  relation  of  this 
government  to  acquired  territory,  as  this  construction  was  presented  in 
the  argument  of  the  insular  cases  before  the  Supreme  Court  of  the» 
United  States  in  the  October  Term,  1900.  We  find  the  matter  collected 
and  published  by  order  of  Congress  under  the  title  of  "The  Insular 
Cases,"  House  of  Representatives,  Document  No.  509.  This  document 
comprises  the  records,  briefs  and  arguments  of  counsel  and  is  compiled 
by  Albert  H.  Howe,  Clerk  of  Printing  Records.) 

The  first  necessity  for  administrative  construction  of  the  power  of 
the  United  States  Government  over  acquired  territory  arose  at  the 
time  of  the  Louisiana  purchase.  Professor  McMaster's  remark  as  to 
Jefferson's  attitude  toward  this  measure  has  already  been  referred  to 


74  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

expression  of  the  opinion  of  Congress,  but  the  question  as 
to  what  is  intended  by  the  words  "United  States"  as  used 
in  the  preamble  cannot  be  regarded  as  conclusively  estab- 
lished by  the  language  of  the  instrument  itself  nor  by  the 

(v.  ante,  p.  14).  The  Attorney-General  (Mr.  Griggs)  in  his  argument 
for  the  government  insisted  that  the  "generally  accepted  belief  that 
Jefferson  did  not  believe  in  the  power  of  the  government  to  acquire 
territory  under  the  Constitution,  is  a  mistake."  It  arises,  he  claims, 
from  a  letter  written  by  Mr.  Jefferson,  August  12,  1803,  to  Senator 
Breckenridge,  of  Kentucky.  (See  p.  152  of  the  document  above  referred 
to.)  But,  admitting  that  this  letter  by  itself  would  lead  to  such  a 
conclusion,  he  argues  that  as  to  this  point  it  is  fully  nullified  by  other 
correspondence  of  Jefferson,  which  he  sets  forth  in  detail,  and  which 
to  a  certain  extent  justifies  his  contention. 

But,  it  is  argued,  what  Jefferson  did  doubt,  and  what  has  led  to 
confusion  and  given  rise  to  the  belief  that  he  doubted  the  presence  in 
the  Constitution  of  the  power  to  acquire  territory,  was  the  power  of 
Congress  to  incorporate  foreign  territory  into  our  Union.  This  is 
where  the  real  difficulty  was  presented  to  his  mind,  and  it  was  a  dif- 
ficulty which  he  felt  could  only  be  overcome  by  an  amendment  to  the 
Constitution.  He  drafted  two  amendments,  in  each  of  which  the  non- 
incorporation  of  the  territory  by  the  mere  acquisition  is  tacitly 
admitted.  The  first  declares:  "The  province  of  Louisiana  is  incor- 
porated with  the  United  States  and  made  part  thereof,"  etc.  The  second 
begins  as  follows :  "Louisiana  as  ceded  by  France  to  the  United  Slates 
is  made  a  part  of  the  United  States." 

This  then  exhibits  the  attitude  of  the  Executive  upon  the  arising  of 
the  question  as  to  the  status  of  acquired  territory.  Whatever  may  be 
said  of  the  merits  of  the  contention  in  respect  to  Jefferson's  doubts  as  to 
the  power  to  acquire  territory,  it  seems  well  established  that  he  did  not 
regard  the  acquisition  of  territory  as  per  se  sufficient  to  make  it  a  part 
of  the  "United  States,"  and  so  subject  to  all  the  provisions  of  the  Con- 
stitution. 

This  attitude,  it  is  claimed,  was  assumed  by  both  the  Federalists  and 
the  adherents  of  Jefferson  (the  Republicans).  So  in  the  Senate, 
Timothy  Pickering,  as  the  mouthpiece  of  the  Federalists,  said :  "It  is 
declared  in  the  third  article  [«.  e.,  the  third  article  of  the  treaty 
by  which  Louisiana  was  ceded]  that  the  inhabitants  of  the  ceded 
territory  shall  be  incorporated  in  the  Union  of  the  United  States.  But 
neither  the  President  and  Senate  nor  the  President  and  Congress  are 
competent  to  such  an  act  of  incorporation."  The  language  of  other 
Senators  is  cited  and  leads  to  the  conclusion  that  these  distinguished 
men,  far  from  thinking  that  the  mere  act  of  acquisition  incorporated 
territory  into  the  Union,  found  difficulty  in  believing  such  incorporation 
possible  except  under  an  amendment  to  the  Constitution. 

But  it  is  contended  by  the  attorneys  for  the  appellants  that  these 


OVER  THE   TERRITORY   OF   THE   UNITED   STATES.         7$ 

meagre  judicial  construction  in  the  reports.     Whether,  then, 
the  general  language  of  the  limitations  of  the  power  of  Con- 
gress is  intended  to  extend  them  throughout  the  territory^ 
of  the  United  States  cannot  be  conclusively  decided  from 

persons  as  well  as  the  members  of  the  House  of  Representatives  were 
met  by  these  difficulties  because  they  regarded  the  treaty  as  providing 
for  ultimate  statehood,  and  it  is  claimed  that  nothing  appears  to  show 
that,  by  the  contention  that  the  territory  could  not  be  incorporated  into 
the  Union,  it  was  implied  that  Congress  could  govern  it  without  regard 
to  the  Constitution. 

The  argument  for  the  government,  upon  this  part,  of  these  cases 
is  much  more  elaborate  than  that  for  the  appellants,  but  the  above 
criticism  seems  just,  and  however  much  it  may  affect  the  question  of 
citizenship  (as  to  which  we  have  waived  discussion)  it  cannot  be 
regarded  as  of  great  weight  in  reference  to  the  application  of  the 
various  restrictions  of  the  Constitution  to  subject  territory. 

The  net  result  of  the  history  thus  adduced  in  support  of  the  conten- 
tions of  either  side  is  not  very  satisfactory,  but  it  is  hardly  a  matter  of 
surprise  to  find  it  so,  when  it  is  remembered  that  the  country,  still  in  its 
infancy,  was  confronted  by  a  problem  which  was  not  definitely  contem- 
plated by  its  organic  law.  It  was  a  question  to  be  worked  out  rather 
by  the  logic  of  events  than  by  the  prearranged  theories  of  the  lawgiver. 

When  the  case  of  Florida  came  up,  and  the  bill  for  the  organization 
of  the  new  territory  was  pending,  an  amendment  was  offered  providing 
that  "all  the  principles  of  the  Constitution  of  the  United  States,  for 
the  securing  of  civil  and  religious  freedom,  and  for  the  security  of 
property,  and  the  sacredness  of  rights  to  things  in  action;  and  all  the 
prohibitions  to  legislation,  as  well  as  with  respect  to  Congress  as  the 
legislatures  of  the  States,  be  and  the  same  are  hereby  declared  to  he 
applicable  to  the  said  territory  as  paramount  acts."  This  amendment 
was  opposed  by  Mr.  Rhea,  of  Tennessee,  and  was  voted  down;  and 
Mr.  Benton,  in  his  abridgment,  commenting  on  this  action  says,  in  part: 
"This  prompt  rejection  of  Mr.  Montgomery's  proposition  shows  what 
the  Congress  of  1822  thought  of  the  right  of  Territories  to  the  enjoy- 
ment of  any  part  of  the  Constitution  of  the  United  States.  .  .  .  The 
only  question  between  Mr.  Montgomery's  proposition  and  the  clause 
already  in  the  bill  was  as  to  the  tenure  by  which  those  rights  should  be 
held — whether  under  the  Constitution  of  the  United  States  or  under 
a  law  of  Congress  and  the  treaty  of  cession.  And  the  decision 
was  that  they  should  be  held  under  the  law  and  the  treaty.  Thus  a 
direct  issue  was  made  between  constitutional  rights  on  one  hand  and 
the  discretion  of  Congress  on  the  other  in  the  government  of  this  Ter- 
ritory, and  decided  promptly  and  without  debate  (for  there  was  no 
speech  after  that  of  Mr.  Rhea  on  either  side)  against  the  Constitution. 
It  was  tantamount  to  the  express  declaration:  'You  shall  have  these 
principles  which  are  in  the  Constitution,  but  not  as  a  constitutional 


'J^  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

these  considerations,  however  much  might  be  said  on  the  one 
side  or  the  other,  but  the  question  must  be  considered  under 
other  aspects. 

In  turning  to  the  reports  in  reference  to  the  limitations  of 

right,  nor  even  as  a  grant  under  the  Constitution,  but  as  a  justice 
flowing  from  our  discretion,  and  as  an  obligation  imposed  by  the 
treaty  which  transferred  you  to  our  sovereignty.'"  (Benton's  Abridg- 
ment, Vol.  VII,  p.  295,  note.) 

An  incident,  arising  in  consequence  of  the  acquisition  of  Florida, 
illustrates  the  attitude  of  the  Executive  at  this  time.  Jackson  had  been 
appointed  governor  of  Florida,  and  assumed  many  powers  that  bor- 
dered close  upon  the  despotic.  Upon  one  occasion  he  "arbitrarily 
seized  three  persons  who  had  refused  to  deliver  over  to  him  certain 
papers  which  he  had  demanded."  At  this  time  Judge  Fromentin 
was  a  Federal  judge  in  this  district,  having  been  appointed  by  Presi- 
dent Monroe.  At  the  instance  of  certain  persons  he  issued  a  writ  of 
habeas  corpus.  When  this  was  served  on  Jackson  he  refused  to  obey 
it,  and  summoned  the  judge  to  appear  before  him  and  answer  as  for  a 
contempt.  A  violent  controversy  arose,  marked  especially  on  the  part 
of  Jackson  by  the  use  of  very  strong  language.  An  appeal  was  had 
to  the  administration  at  Washington,  and  the  issue  was  determined  in 
favor  of  Jackson.  President  Monroe,  through  his  Secretary  of  State, 
John  Quincy  Adams,  directed  the  judge  to  decline  further  intrusion. 
Thus  Adams  writes:  "I  am  directed  by  the  President  to  inform  you 
that  the  laws  of  the  United  States  relative  to  the  revenue  and  its  col- 
lection and  those  relating  to  the  slave  trade  having  been  the  only 
ones  extended  by  Act  of  Congress  to  the  Territories  of  Florida,  it  was 
to  the  execution  only  of  them  that  your  commission  as  judge  of  the 
United  States  was  considered  and  intended  to  apply.  The  President 
thought  the  authority  of  Congress  alone  competent  to  extend  othert 
laws  of  the  United  States  to  newly-acquired  territory;  nor  could  he 
give  to  the  judges  a  jurisdiction  which  could  only  be  conferred  by 
them."  (Annals  of  Congress,  first  session.  Seventeenth  Congress,  Vol. 
II,  p.  2411.)  It  is  noteworthy  that  three  statesmen,  Monroe,  Jackson 
and  John  Quincy  Adams,  each  a  President  of  the  United  States,  were 
concerned  in  this  case. 

"When  Oregon  was  established  as  a  government.  Congress  passed 
an  act  extending  the  ordinance  of  1787  to  its  inhabitants,  and  expressly 
extending  the  revenue  laws  of  the  United  States  to  it.  A  Territorial 
government  was  established  for  Missouri  in  1812.  It  was  not  assumed 
by  Congress  that  all  the  privileges,  immunities  and  guarantees  of  the 
Constitution  extended  there,  because  Congress  proceeded  specifically 
to  pass  an  act  in  which  a  modified  bill  of  rights,  modeled  somewhat 
after  the  bill  of  rights  in  the  ordinance  of  1787,  was  extended  to  the 
inhabitants  of  Missouri.  And  when  Wisconsin  was  set  up  as  a 
Territory  the  laws  of  the  United  States  were  by  that  act  extended  to 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         7/ 

the  power  of  Congress  over  the  territory  of  the  United 
States,  we  wish  to  consider,  first,  some  of  the  general  lan- 
guage upon  this  point,  and  then  the  decisions  which  more 
immediately  deal  with  the  precise  question. 

The  power  to  govern  the  territory  of  the  United  States 

the  Territory.  When  New  Mexico  was  set  up  as  a  Territory  in  1850, 
it  was  provided  that  the  Constitution  and  all  laws  of  the  United 
States  which  are  not  locally  inapplicable  shall  have  the  same  force  and 
effect  within  said  Territory  of  New  Mexico  as  elsewhere  within  the 
United  States."  (Argument  of  the  Attorney-General  in  the  case  of 
Goetze  &  Co.  v.  United  States,  "The  Insular  Cases,"  document  above 
referred  to,  p.  320.) 

The  debate  in  the  United  States  Senate  in  February,  1849,  on  a  reso- 
lution to  extend  the  Constitution  to  California  and  New  Mexico,  is 
cited  at  some  length  by  both  sides  in  the  late  cases,  but  since  it  discloses 
a  divergence  of  opinion  in  the  minds  of  the  various  Senators,  it  can 
hardly  be  regarded  as  indicative  of  any  precise  attitude  on  the  part  of 
the  body  as  a  whole.  Further,  the  burning  question  involved  was 
slavery,  and  this  swayed  the  partisans  to  a  particular  stand,  and  com- 
pelled them  to  treat  the  question  of  the  applicability  of  the  Constitution 
to  acquired  territory  as  subordinate,  and  as  merely  a  link  in  the  chain 
of  reasoning  by  which  they  determined  the  rights  of  slaveholders  in  such 
territory.  We  shall  therefore  not  quote  from  the  various  opinions 
expressed  at  that  time. 

The  administrative  construction  in  reference  to  the  necessity  for 
some  act  of  incorporation  by  Congress  is  apparently  in  favor  of  the  con- 
tention of  the  government,  though  it  seems  to  be  a  question  which  did 
not  assume  an  aspect  of  great  importance  until  the  question  of  slavery 
made  it  of  vital  interest.  Then  the  two  contentions  at  once  found 
numerous  supporters.  In  saying  this  we  place  upon  the  dispute  which 
arose  in  regard  to  the  Louisiana  purchase  the  construction  urged  by 
the  attorneys  for  the  appellants  in  the  insular  cases. 

Just  how  much  weight  should  be  given  to  the  administrative  inter- 
pretation referred  to  will  probably  depend  largely  upon  one's  individual 
attitude  towards  our  scheme  of  government.  Without  doubt,  the  ulti- 
mate determination  of  all  such  Constitutional  questions  is  with  the 
Supreme  Court  of  the  United  States.  On  the  one  hand  it  is  an  easy 
argument  to  say  that  under  the  peculiar  power  given  to  the  Supreme 
Court  steps  should  be  taken  with  great  caution  and  a  continued  and 
uniform  interpretation  of  the  Constitution  by  the  Executive  and 
Legislative  branches  of  the  government  should  be  accepted  unless 
flagrantly  wrong.  On  the  other  it  may  be  urged  that  the  Court  is  less 
influenced  by  the  inducements  of  the  moment,  and  hence  more  sure 
and  certain  in  its  interpretation  of  the  will  of  the  people.  It  is  an  old 
and  fundamental  question,  and  one  whose  solution  will  necessarily  be 
worked  out  with  the  progress  of  our  country's  history. 


78  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

having  been  vested  in  Congress,  Congress  is  supreme  with 
respect  to  this  territory  except  as  to  such  constitutional 
limitations  as  may  be  found  to  exist.  This  is  just  the  con- 
verse of  the  extent  of  its  power  over  the  States,  in  which 
its  several  powers  are  limited  to  those  which  are  expressly 
conferred  or  necessarily  implied.  So  to  this  effect  we  find 
the  language  of  National  Bank  v.  County  of  Yankton,  loi 
U.  S.  129,  1879,  at  page  133,  in  reference  to  the  power  of 
Congress  to  validate  the  bonds  of  a  Territory :  *The  Terri- 
tories are  but  political  subdivisions  of  the  outlying  dominion 
of  the  United  States.  Their  relation  to  the  general  govern- 
ment is  much  the  same  as  that  which  counties  bear  to  the 
respective  States,  and  Congress  may  legislate  for  them  as 
a  State  does  for  its  municipal  organizations.  .  .  Con- 
gress is  supreme,  and  for  the  purposes  of  this  department 
of  its  governmental  authority  has  all  the  powers  of  the 
people  of  the  United  States,  except  such  as  have  been  ex- 
pressly or  by  implication  reserved  in  the  prohibitions  of  the 
Constitution." 

So  in  Murphy  v.  Ramsey,  114  U.  S.  15,  1885,  a  case  with 
reference  to  the  power  of  Congress  to  prescribe  the  qualifi- 
cations of  voters  in  the  Territory  of  Utah,  the  Court  says, 
at  page  44,  speaking  through  Mr.  Justice  Matthews :  "The 
people  of  the  United  States,  as  sovereign  owners  of  the  Na- 
tional Territories,  have  supreme  power  over  them  and  their 
inhabitants.  In  the  exercise  of  this  sovereign  dominion, 
they  are  represented  by  the  government  of  the  United  States, 
to  whom  all  the  powers  of  government  over  that  subject 
have  been  delegated,  subject  only  to  such  restrictions  as  are 
expressed  in  the  Constitution,  or  are  necessarily  implied  in 
its  terms,  or  in  the  purposes  and  objects  of  the  power  itself; 
for  it  may  well  be  admitted  in  respect  to  this,  as  to  every 
power  of  society  over  its  members,  that  it  is  not  absolute 
and  unlimited.  But  in  ordaining  government  for  the  Ter- 
ritories, and  the  people  who  inhabit  them,  all  the  discretion 
which  belongs  to  legislative  power  is  vested  in  Congress. 
.  .  .  The  right  of  local  self-government,  as  known  to 
our  system  as  a  constitutional  franchise,  belongs,  under  the 
Constitution,  to  the  States  and  to  the  people  thereof,  by 
whom  that  Constitution  was  ordained,  and  to  whom  by  its 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         79 

terms  all  power  not  conferred  by  it  upon  the  government 
of  the  United  States  was  expressly  reserved.  The  personal 
and  civil  rights  of  the  inhabitants  of  the  Territories  are 
secured  to  them,  as  to  other  citizens,  by  the  principles  of 
constitutional  liberty  which  restrain  all  the  agencies  of  gov- 
ernment, State  and  National ;  their  political  rights  are  fran- 
chises which  they  hold  as  privileges  in  the  legislative  discre- 
tion of  the  Congress  of  the  United  States." 

And  in  Shively  v.  Bowlby,  152  U.  S.  i,  1894,  the  Court, 
citing  among  others  the  two  cases  just  referred  to,  says,  at 
page  48:  '*By  the  Constitution,  as  is  now  well  settled,  the 
United  States,  having  rightfully  acquired  the  Territories 
and  being  the  only  government  which  can  impose  laws  upon 
them,  have  the  entire  dominion  and  sovereignty,  national 
and  municipal.  Federal  and  State,  over  all  the  Territories, 
so  long  as  they  remain  in  a  territorial  condition." 

From  this  general  language  of  the  Court  we  may  con- 
clude that  the  power  of  Congress  over  the  territory  of  the 
United  States  is  plenary,  except  as  limited ;  that  these  limi- 
tations may  arise  in  one  or  more  of  three  ways :  first,  by  the 
express  words  of  the  Constitution ;  second,  by  necessary  im- 
plication therefrom ;  third,  by  "the  purposes  and  objects  of 
the  power  itself." 

In  reference  to  express  limitations  a  question  of  great 
practical  importance  arises  with  respect  to  the  first  ten 
Amendments  to  the  Constitution.  On  this  point  we  find 
the  words  of  Chief  Justice  Taney  in  the  Dred  Scott  Case, 
19  Howard,  449 :  "The  Territory  being  a  part  of  the  United 
States,  the  Government  and  the  citizen  both  enter  it  under 
the  authority  of  the  Constitution,  with  their  respective  rights 
defined  and  marked  out;  and  the  Federal  Government  can 
exercise  no  power  over  his  person  or  property,  beyond  what 
that  instrument  confers,  nor  lawfully  deny  any  right  which 
it  has  reserved."  Then  enumerating  the  specific  guaranties 
of  the  Amendments,  he  goes  on  to  say:  "The  powers  over 
person  and  property  of  which  we  speak  are  not  only  not 
granted  to  Congress,  but  are  in  express  terms  denied,  and 
they  are  forbidden  to  exercise  them.  And  this  prohibition 
is  not  confined  to  the  States,  but  the  words  are  general,  and 
extend  to  the  whole  territory  over  which  the  Constitution 


So  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

gives  it  power  to  legislate,  including  those  portions  of  it  re- 
maining under  Territorial  Government,  as  well  as  that  cov- 
ered by  States.  It  is  a  total  absence  of  power  everywhere 
within  the  dominion  of  the  United  States,  and  places  the 
citizens  of  a  Territory,  so  far  as  these  rights  are  concerned, 
on  the  same  footing  with  citizens  of  the  States,  and  guards 
them  as  firmly  and  plainly  against  any  inroads  which  the 
General  Government  might  attempt,  under  the  plea  of 
implied  or  incidental  powers." 

In  this  same  case  Mr.  Justice  Campbell  in  his  opinion, 
says,  at  page  513:  "The  advocates  for  Government  sov- 
ereignty in  the  Territories  have  been  compelled  to  abate 
a  portion  of  the  pretensions  originally  made  in  its  behalf, 
and  to  admit  that  the  constitutional  prohibitions  upon  Con- 
gress operate  in  the  Territories." 

To  the  same  effect,  though  not  so  definitely,  is  the  lan- 
guage of  the  Court  in  Maynard  v.  Hill,  125  U.  S.  190, 
1888,  at  page  204:  "The  power  [of  legislation]  was  ex- 
tended *to  all  rightful  subjects  of  legislation,*  to  which  was 
added  in  some  acts  .  .  .  *not  inconsistent  with  the 
Constitution  and  laws  of  the  United  States,'  a  condition 
necessarily  existing  in  the  absence  of  express  declaration  to 
that  effect/' 

On  the  other  hand,  we  find  language  looking  the  other 
way  in  the  opinion  of  Mr.  Justice  Johnson  delivered  at  Cir- 
cuit in  the  case  of  the  American  Insurance  Co.  v.  Canter, 
I  Peters,  511,  1828,  at  page  517:  "The  right  of  acquiring 
territory  is  altogether  incidental  to  the  treaty-making  power, 
and  perhaps  to  the  power  of  admitting  new  States  into  the 
Union;  and  the  government  of  such  acquisitions  is,  of 
course,  left  to  the  legislative  power  of  the  Union,  as  far 
as  that  power  is  uncontrolled  by  treaty.  .  .  .  And  in 
case  of  such  acquisitions,  /  see  nothing  in  zvhich  the  power 
acquired  over  the  ceded  territories  can  vary  from  the  power 
acquired  under  the  law  of  nations  by  any  other  government 
over  acquired  or  ceded  territory."  This,  however,  being 
an  opinion  delivered  at  Circuit,  and  this  part  of  the  opinion 
not  having  been  reiterated  in  the  opinion  of  the  Court,  as 
delivered  by  Mr.  Chief  Justice  Marshall  on  appeal  to  the 
Supreme  Court,  cannot  be  regarded  as  of  much  weight  in 


OVER    THE    TERRITORY    OF    THE    UNITED    STATES.         8 1 

comparison  with  an  opinion  of  the  Supreme  Court,  though 
Justice  Johnson  was  at  that  time  a  member  of  that  Court. 

But  in  Mormon  Church  v.  United  States,  136  U.  S.  i, 
1890,  at  page  44,  Mr.  Justice  Bradley,  in  reference  to  these 
express  hmitations  on  the  power  of  Congress,  says :  "Doubt- 
less Congress,  in  legislating  for  the  Territories,  would  be 
subject  to  those  fundamental  limitations  in  favor  of  personal 
rights  which  are  formulated  in  the  Constitution  and  its 
Amendments;  but  these  limitations  would  exist  rather  by 
inference  and  the  general  spirit  of  the  Constitution  from 
which  Congress  derives  all  its  powers  than  by  any  express 
and  direct  application  of  its  provisions.'' 

In  the  recent  case,  above  referred  to — Goetze  &  Co.  v. 
United  States,  103  Fed.  y2,  1900 — ^Judge  Townsend,  re- 
ferring to  this  passage,  in  Mormon  Church  v.  United  States, 
says:  "If  the  United  States  tried  to  govern  any  territory 
in  violation  of  the  spirit  pervading  republican  institutions, 
such  action  might  be  held  illegal  by  the  courts  on  the  basis 
of  this  principle  [that  is  "that  a  Republic  cannot  be  allowed 
to  govern  without  any  restraint"].  It  may  be  admitted  that 
the  Constitutional  guaranties  of  civil  rights  would  apply  to 
territory  under  the  sovereignty,  but  not  a  part  of  the  United 
States.  Certain  civil  rights,  which  we  believe  belong  to 
every  one,  are  crystallized  into  the  negative  provisions  of 
our  Constitution  in  order  to  prevent  any  wrongful  or  im- 
proper use  of  our  power,  and  these  may  be  held  to  control 
our  power  wherever  it  reaches.  These  considerations  may 
be  found  to  limit  us  in  governing  any  territory.  Whether 
they  do  or  not  it  is  not  necessary  here  to  decide.  If  they  do 
it  will  be  because  we  cannot  violate  the  principles  of  gov- 
ernment imbedded  in  our  institutions;  not  because  Porto 
Rico  is  part  of  the  American  nation;  it  will  be  for  the  rea- 
sons thus  stated  by  Mr.  Justice  Bradley  in  Mormon  Church 
V.  United  States/'  quoting  the  language  as  we  have  quoted 
it  above. 

With  reference  to  the  third  source  from  which  limitations 
of  the  power  of  Congress  over  the  territory  of  the  United 
States  may  be  said  to  spring,  namely,  from  the  purposes 
and  objects  of  the  power,  we  notice  a  passage  from  the  dis- 
senting opinion  of  Mr.  Justice  McLean  in  the  Dred  Scott 


82  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

Case,  at  page  542 :  "In  organizing  the  Government  of  a 
Territory,  Congress  is  limited  to  means  appropriate  to  the 
attainment  of  the  constitutional  object.  No  powers  can  be 
exercised  which  are  prohibited  by  the  Constitution,  or 
which  are  contrary  to  its  spirit;  so  that,  whether  the  object 
may  be  the  protection  of  the  persons  and  property  of  pur- 
chasers of  the  public  lands,  or  of  communities  who  have 
been  annexed  to  the  Union  by  conquest  or  purchase,  they  are 
initiatory  to  the  establishment  of  State  Governments,  and  no 
more  power  can  be  claimed  or  exercised  than  is  necessary 
to  the  attainment  of  the  end.  This  is  the  limitation  of  all 
the  Federal  powers." 

We  have  quoted  thus  at  length  from  the  opinions  of  the 
various  members  of  the  Court,  as  being  the  only  way  in 
which  we  could  adequately  bring  together  and  compare  the 
various  views  in  reference  to  the  limitation  of  the  power  of 
Congress  over  the  territory  of  the  United  States.  Justice 
McLean  evidently  regards  Statehood,  as,  under  the  Consti- 
tution, the  necessary  end  of  all  territory  acquired  by  the 
United  States,  and  argues  that  the  rules  adopted  by  Con- 
gress must  be  such  as  are  legitimately  adapted  to  this  end. 
His  views  are  applicable,  however,  if  the  object  for  which 
territory  is  held  be  regarded  as  other  than  Statehood.  The 
limitations  would  naturally  vary  with  the  object  for  which 
such  territory  would  be  held.  Conceding,  however,  that 
the  object  in  view  be  constitutional,  it  brings  the  operation 
of  the  power  of  Congress  to  legislate  within  the  general 
doctrine  of  the  implied  powers,  and  seems  to  regard  as 
untenable  the  position  that  the  express  limitations  of  the 
Amendments  are  applicable  in  the  territory  of  the  United 
States  ex  propria  vigore^^  by  its  silence  with  regard  to  them 

"By  this  convenient  term  ex  propria  vigore,  so  frequently  used  at 
present,  we  mean  that  its  terms  have  been  intended  by  those  who  have 
adopted  the  Constitution  to  include  the  territory  of  the  United  States, 
and  so  do  not  need  the  sanction  of  an  act  of  Congress  to  make  them 
there  operative,  but  extend  of  their  own  force  throughout  the  land. 
Not  that  an  act  of  Congress  could  extend  the  Constitution  to  the  new 
territory.  Such  an  enactment  might  declare  its  provisions  in  force, 
but  they  would  derive  their  authority  not  directly  from  the  will  of  those 
who  adopted  the  Constitution,  but  mediately  through  the  intervening 
will  of  Congress,  like  any  other  enactment  of  the  Federal  Legislature. 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         85 

and  its  assignment  of  the  limitations  to  an  entirely  different 
source  than  the  express  terms  of  the  Amendments. 

Are  these  apparently  varying  views  expressed  in  these 
different  cases  necessarily  irreconcilable?  The  three  sources 
of  limitations  referred  to  by  Mr.  Justice  Matthews  in 
Murphy  v.  Ramsey,  supra,  include  those  discussed  in  the 
cases  just  cited.  Limitations  necessarily  implied  can  well 
be  regarded  as  included  with  those  expressly  imposed,  since 
all  rules  of  construction  would  admit  their  existence.  As 
between  the  limitations  expressed  and  those  which  flow 
from  the  purposes  and  objects  of  the  power  itself,  it  is  easily 
conceivable  that  these  might  be  identical.  The  powers  con- 
ferred on  Congress  over  the  territory  of  the  United  States 
are  plenary  except  as  restricted.  {National  Bank  v.  County  of 
Yankton,  supra.)  The  restrictions  arise  in  regard  to  mat- 
ters which  are  not  necessary  and  proper  to  fulfil  the 
constitutional  object  for  which  the  territory  is  held,  what- 
ever  that  object  may  be,  and  are  for  the  determination  of 
the  Supreme  Court  in  the  last  instance.  If  these  restric- 
tions have  been  decided  in  certain  cases  to  be  such  as  are 
expressly  enumerated  in  the  Amendments  to  the  Constitu- 
tion, is  this  necessarily  decisive  of  the  question  whether  these 
Amendments  are  in  force  ex  proprio  vigore.  May  it  not  be 
that  the  Court  has  so  decided  merely  because  the  violation 
of  those  Amendments  would  give  rise  to  acts  not  necessary 
and  proper  to  the  general  purpose  for  which  the  territory  is 
held?  It  is  apparent  that  the  same  restriction  might  arise, 
whichever  might  be  regarded  as  its  source.     As  to  this 

Under  the  doctrine  of  Goetze  v.  United  States,  the  theory  seems  to» 
be  that  Congress  may  incorporate  territory,  and  thus  bring  it  within 
the  operation  of  constitutional  provisions,  just  as  it  may  admit  a  State 
and  bring  former  territory  under  the  provisions  of  the  Constitution 
referring  to  States.  But  this  is  primarily  a  determination  of  the  status 
of  the  possessions  of  the  United  States,  which  determination  under  the 
doctrine  of  that  case  is  confided  to  Congress;  but  Congress  no  more 
extends  the  Constitution  than  it  does  when  it  admits  a  State.  Under 
its  constitutional  power  (assuming  for  the  moment  that  the  case  is 
law)  it  determines  the  status  of  the  territory.  The  Constitution  then 
extends  to  it  by  virtue  of  the  will  of  those  who  adopted  it,  just  as 
certain  of  its  provisions  are  broadened  in  their  scope  by  the  admission* 
of  every  new  State. 


84  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

source,  we  have  seen  that  the  language  of  the  Court  varies. 
Chief  Justice  Taney  in  the  Dred  Scott  Case  seems  clear  to 
the  effect  that  the  Amendments  extend  of  themselves  to  the 
territory  of  the  United  States,  while  Justice  Bradley  in 
Mormon  Church  v.  United  States  expressly  doubts  the  au- 
thority of  those  Amendments  in  the  territory  of  their  own 
force. 

As  illustrative  of  the  point  we  wish  to  make,  we  may 
consider  the  First  Amendment  to  the  Constitution  in  refer- 
ence to  the  establishment  of  a  religion.  Whether  territory 
is  held  with  the  prospect  of  ultimate  Statehood  or  of  con- 
tinued colonial  character,  it  is  readily  conceivable  that  the 
establishment  of  a  religion  would  not  be  regarded  by  the 
Court  as  flowing  from  the  "purposes  and  objects"  for  which 
such  territory  might  be  held,  and  hence  was  one  of  those 
limitations  which  the  people  of  the  States,  in  adopting  the 
Constitution,  had  intended  to  place  upon  the  power  of  Con- 
gress over  the  territory.  This  would  accomplish  the  same  end 
as  though  it  were  held  that  the  First  Amendment  is  of  its 
own  force  {ex  proprio  vigor e)  immediately  controlling  in 
the  territory  of  the  United  States.  Other  Amendments 
might  be  considered  in  the  same  way,  and  the  same  result 
reached. 

In  coming  to  a  conclusion  upon  such  questions  it  is  very 
probable  that  the  theory  of  our  political  institutions  and  the 
general  doctrines  which  have  been  built  upon  our  free  form 
of  government,  should  play  a  large  part  in  determining 
whether  the  people  intended  to  restrict  the  power  of  Con- 
gress in  a  certain  respect,  as  not  being  necessary  and  proper 
to  allow  it,  in  view,  as  Mr.  Justice  Bradley  puts  it,  "of  the 
general  spirit  of  the  Constitution."  Such  considerations  are 
more  or  less  political  in  character,  and  the  Court  might  well 
give  Congress  a  wider  latitude  than  in  its  legislation  directly 
for  the  States,  where  the  Amendments  are  expressly  and  im- 
mediately controlling.  But  it  cannot  be  doubted  that  the 
general  spirit  of  the  Constitution,  the  purposes  and  objects 
for  which  territory  is  held,  the  theory  of  republican  institu- 
tions, may  all  concur  to  impose  on  the  action  of  Congress 
those  limitations  which  "are  crystallized  into  the  negative 
provisions  of  our  Constitution." 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         85 

The  history  of  the  adoption  of  the  first  ten  Amendments 
rather  favors  the  view  that  they  were  to  be  applicable,  first 
of  all,  to  the  States  whose  inhabitants  had  adopted  them. 
Having  been  added  to  the  Constitution  in  consequence  of 
excessive  fear  of  the  power,  of  the  General  Government  over 
those  who  themselves  had  created  it,  it  was  for  the  immedi- 
ate purpose  of  protecting  their  own  rights.  If  it  is  to  be 
extended  further,  to  their  possessions,  it  is  a  very  reasonable 
view  to  regard  it  as  so  extending  in  virtue  of  the  intention 
of  the  people  adopting  it  to  grant  no  powers  inconsistent 
with  the  general  theory  underlying  all  the  structure  of  the 
Government. 

The  language  of  the  preamble  tends  towards  the  view 
that  the  general  language  of  the  Constitution  is  limited  to 
the  States,  and  if  it  is  to  be  further  extended,  it  is  by  infer- 
ence from  its  general  spirit.  The  historical  facts  in  refer- 
ence to  the  first  ten  Amendments  point  in  the  same  direction. 
We  have  endeavored  to  show  that  the  views  of  the  judges 
with  reference  to  express  restrictions,  implied  restrictions, 
and  such  as  flow  from  the  purposes  and  objects  of  the  power 
conferred,  are  not  necessarily  antagonistic.  In  discussing 
the  cases  which  have  arisen  as  to  the  application  of  the 
provisions  of  the  Constitution  to  the  territory  of  the  United 
States,  we  wish,  in  addition  to  noting  the  provisions  which 
have  been  held  applicable,  to  find,  as  far  as  possible,  the 
view  of  the  Court  in  reference  to  the  authority  of  the  pro- 
vision in  question,  whether  it  controls  in  consequence  of  such 
territory  being  within  the  intended  scope  of  such  provision, 
or  in  virtue  of  its  relation  to  the  object  for  which  the  power 
to  govern  the  territory  is  conferred. 

The  earliest  case  to  which  we  shall  refer  is  the  Dred  Scott 
Case.  Of  course,  as  we  have  admitted  before,  much  of  the 
language  of  that  case  is  weakened  by  the  peculiar  nature  of 
the  decision,  the  large  proportion  of  dicta  and  the  subse- 
quent historical  events;  but  even  so,  the  careful  considera- 
tion given  to  its  various  details  by  the  different  judges 
renders  their  conclusions  worthy  of  no  small  consideration. 
In  this  case  the  judges  who  considered  the  Missouri  Com- 
promise and  agreed  in  holding  it  unconstitutional  (Taney, 
C.  J.,  Wayne,  Grier,  Daniel,  Campbell,  and  Catron,  JJ.)  do 


86  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

SO,  partly  on  the  ground  that  it  is  violative  of  Amendment  V, 
denying  to  Congress  the  power  to  deprive  any  person  "of 
life,  liberty,  or  property  without  due  process  of  law,"  and 
partly  as  violative  of  Article  IV,  section  2 :  "The  citizens  of 
each  State  shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  States."  Thus  Chief  Justice 
Taney,  referring  in  detail  to  the  restrictions  placed  upon 
Congress  by  the  Amendments,  says  at  page  450:  "These 
powers  and  others,  in  relation  to  rights  of  person,  which  it 
is  not  necessary  here  to  enumerate,  are,  in  express  and  posi- 
tive terms,  denied  to  the  General  Government;  and  the 
rights  of  private  property  have  been  guarded  with  equal 
care.  Thus  the  rights  of  property  are  united  with  the 
rights  of  person,  and  placed  on  the  same  ground  by  the  Fifth 
Amendment  to  the  Constitution,  which  provides  that  no 
person  shall  be  deprived  of  life,  liberty,  and  property  with- 
out due  process  of  law.  And  an  act  of  Congress  which 
deprives  a  citizen  of  the  United  States  of  his  liberty  or 
property,  merely  because  he  came  himself  or  brought  his 
property  into  a  particular  Territory  of  the  United  States, 
and  who  had  committed  no  offense  against  the  laws,  could 
hardly  be  dignified  with  the  name  of  due  process  of  law." 
So  in  the  general  language  of  the  Chief  Justice,  quoted 
above  (p.  79),  the  Amendments  are  regarded  as  intended 
for  the  Territories  as  well  as  the  States,  and  in  applying 
this  general  principle  to  the  particular  facts  of  the  case,  he 
draws  the  restriction  on  the  power  of  Congress  directly 
from  the  language  of  this  Amendment;  as  Mr.  Justice 
Catron  on  a  subsequent  page  (527)  draws  the  restriction 
from  the  second  section  of  Article  IV. 

The  two  dissenting  Justices  in  this  case  (McLean  and 
Curtis),  who  regard  the  Missouri  Compromise  as  valid,  do 
so,  not  on  the  ground  of  the  inapplicability  of  these  consti- 
tutional provisions,  but  because,  as  they  contend,  they  are 
not  violated,  since  slaves  are  not  property  within  the  mean- 
ing of  the  Constitution  except  where  slavery  is  established, 
and  as  that  is  a  matter  of  local  legislation,  and  as  such  prop- 
erty was  not  recognized  in  the  Territories,  no  deprivation 
had  occurred.  This  whole  case  bears  strongly  on  the  side 
of  the  contention  that  the  whole  Constitution,  where  its 


OVER    THE   TERRITORY    OF   THE   UNITED    STATES.         8/ 

terms  are  not  restricted,  includes  within  its  express  language 
the  entire  dominion  of  the  United  States.  The  case,  there- 
fore, supports  the  view  of  those  who  find  the  limitations  on 
the  power  of  Congress  in  the  general  restrictive  language 
of  the  express  provisions  of  the  Constitution,  and  not  in  any 
inference  from  the  nature  of  the  power  conferred,  or  the 
general  spirit  of  the  instrument. 

In  Hopt  V.  Utah,  no  U.  S.  574,  1884,  at  page  579,  Mr. 
Justice  Harlan,  discussing  the  necessity  of  the  presence  of 
the  accused  on  a  trial  for  murder,  says :  "If  he  be  deprived 
of  his  life  or  liberty  without  being  so  present,  such  depriva- 
tion would  be  without  that  due  process  of  law  required  by 
the  Constitution."  Now  this  was  said,  not  in  reference  to 
an  act  of  Congress,  as  was  the  case  in  Dred  Scott  v.  Sand- 
ford,  but  in  reference  to  procedure  under  the  code  of  Utah, 
then  a  Territory;  and  by  act  of  Congress  the  Constitution 
had  been  made  part  of  the  fundamental  law  of  the  Terri- 
tory, and  hence  from  this  source  might  have  been  derived 
the  restriction  on  the  Territorial  legislation,  yet  the  lan- 
guage of  the  Court  apparently  indicates  an  immediate  re- 
striction from  the  Constitution  itself.  If  it  does  so  operate, 
per  se,  it  is,  as  we  have  sought  to  show  above  (p.  61),  bind- 
ing on  Congress  in  similar  measure.  So  in  a  later  part  of 
the  same  decision  (at  page  588)  the  question  of  the  con- 
sistency of  the  Territorial  law  with  the  ex  post  facto  restric- 
tion was  considered,  and  in  the  discussion  it  was  taken  for 
granted  that  this  part  of  the  Constitution  restrained  the 
power  of  the  Territory.  Here,  again,  the  tone  of  the  dis- 
cussion indicates  a  necessity  of  compliance  with  the  Consti- 
tution irrespective  of  the  organic  law.  This,  however,  is 
an  inference  from  the  form  of  the  discussion,  and,  under 
the  facts  of  the  case,  an  express  assertion  to  this  effect  would 
have  been  dictum.  The  case,  nevertheless,  seems  to  support 
the  view  of  the  matter  prevailing  in  the  Dred  Scott  Case. 

The  next  case  to  which  we  desire  to  refer  is  a  case  which 
arose  with  respect  to  the  District  of  Columbia,  but  the 
principle  of  the  case  applies  equally  well  to  the  territory  of 
the  United  States — in  fact  the  authorities  cited  are  in  refer- 
ence to  the  Territories.  In  Callan  v.  Wilson,  127  U.  S. 
540,  1888,  the  question  was  as  to  the  rights  of  the  inhabitants 


88  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

of  the  District  to  trial  by  jury,  the  trial  in  that  instance 
having  been  without  a  jury.  Mr.  Justice  Harlan,  in  con- 
sidering the  claim  to  this  right  as  existing,  refers  to  the  Thi 
Article  of  the  Constitution  providing  that  the  trial  of  all 
crimes  except  in  cases  of  impeachment  be  by  jury,  to  the 
Fifth  Amendment  requiring  due  process  of  law,  and  to  the 
Sixth  Amendment  requiring  that  "in  all  criminal  prosecu- 
tions the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial  by  an  impartial  jury  of  the  State  and  district  wherein 
the  crime  shall  have  been  committed,"  etc.  The  opinion 
of  the  Court  regards  the  section  of  the  Third  Article, 
referred  to,  as  securing  a  jury  trial,  and  the  Sixth 
Amendment  as  "an  enumeration  of  the  rights  of  the  accused 
in  criminal  prosecutions."  "This  recognition,"  says  the 
Court,  "was  demanded  and  secured  for  the  benefit  of  all  the 
people  of  the  United  States,  as  well  those  permanently 
or  temporarily  residing  in  the  District  of  Columbia,  as  those 
residing  or  being  in  the  several  States." 

Here  again  the  Court  regards  these  restrictions  as  in- 
tended to  operate  in  the  District  of  Columbia,  and  by  parity 
of  reasoning,  in  the  other  territory  of  the  United  States. 
Under  the  view  taken  by  the  Court,  as  enunciated  by  Mr. 
Justice  Harlan,  it  became  unnecessary  to  decide  whether 
the  Fifth  Amendment  was  operative  or  not;  but  it  was  this 
same  judge  who  so  regarded  it  in  Hopt  v.  Utah.  The 
Court  is  not  clear  in  its  reference  to  the  Sixth  Amendment, 
which,  as  we  have  pointed  out  above,^^  seems  confined  by 
its  own  language  to  the  States.  This  case  cites  with  ap- 
proval Reynolds  v.  United  States,  98  U.  S.  145,  1878,  at 
page  154,  saying  that  it  was  there  "taken  for  granted  that 
the  Sixth  Amendment  of  the  Constitution  secured  to  the 
people  of  the  Territories  the  right  of  trial  by  jury  in  crim- 
inal prosecutions.  .  .  .  We  cannot  think  that  the  people 
of  the  District  have,  in  that  regard,  less  rights  than  those 
accorded  to  the  people  of  the  Territories  of  the  United 
States."  But  the  attitude  of  the  Court  towards  the  limita- 
tions is  as  in  the  preceding  case,  regarding  them  as  flowing 
from  the  express  language  of  the  Constitution,  which  in  its 

"  V.  ante,  p.  66  ff. 


OVER   THE   TERRITORY   OF   THE    UNITED   STATES.         89 

use  of  general  terms  is  considered  as  extending  over  the  en- 
tire possessions  of  the  country. 

To  the  same  effect  is  Davis  v.  Beason,  133  U.  S.  333, 
1890,  where  the  regulations  of  Idaho  in  regard  to  the  quali- 
fications of  office-holders  and  so  forth,  denying  such 
privilege  to  bigamists  and  polygamists,  was  upheld.  The 
argument  had  been  made  that  the  legislation  of  the  Ter- 
ritory was  violative  of  the  First  Amendment  to  the  Consti- 
tution; and  the  Court  taking  for  granted  that  it  must  meet 
the  test  of  conformity  to  this  Amendment,  discussed  it  in 
relation  thereto,  but  decided  it  to  be  no  infringement.  Here 
again  it  was  to  the  exact  language  of  the  Constitution  as  a 
standard  that  it  was  referred,  and  not  to  general  principles. 
However,  it  must  be  remembered  that  in  this  case  the  or- 
ganic act  rendered  the  Constitution  applicable,  though  to 
that  act  no  reference  is  made  by  the  Court. 

The  power  of  eminent  domain  in  Congress  is  restricted  by 
the  Fifth  Amendment  in  that  it  declares  that  no  ''private 
property  shall  be  taken  for  public  use,  without  just  compen- 
sation." This  restriction  of  the  Amendment  was  declared 
applicable  to  the  case  of  Indian  land  situated  in  a  Territory 
in  the  case  of  Cherokee  Nation  v.  Kansas  Railway  Co.,  135 
U.  S.  641,  1890,  at  page  657,  the  Court  assuming  without 
discussion  that  this  limitation  was  binding  on  Congress 
under  such  circumstances.  The  case  can  hardly  be  said  to 
throw  much  light  on  the  exact  question  of  whether  the  limi- 
tation springs  immediately  from  the  words  of  the  instru- 
ment, or  arises  in  consequence  of  the  general  spirit  of  our 
free  institutions.  However  the  fact  that  the  very  words  of 
the  Amendment  ("taken  without  just  compensation")  are 
used,  makes  this  case  support,  in  a  slight  measure  at  least, 
the  preceding  cases  to  which  we  have  already  referred. 

In  Mormon  Church  v.  United  States,  136  U.  S.  i,  1890, 
the  constitutional  guaranty  of  religious  freedom  was  again 
appealed  to,  this  time  as  forbidding  legislation  repealing  the 
charter  of  the  Church  of  Jesus  Christ  of  Latter  Day  Saints, 
and  secondly  there  was  called  in  question  the  power  of  Con- 
gress and  the  Court  to  seize  the  property  of  the  same  and 
hold  for  purposes  specified  in  the  decree  of  the  lower  court. 
Mr.  Justice  Bradley,  delivering  the  opinion  of  the  Court, 


90  THE   CONSTITUTIONAL   POWER   OF    CONGRESS 

does  not  deny  the  authority  of  the  First  Amendment  in  the 
territory  of  the  United  States,  but  regards  the  action  of 
Congress  and  the  courts  as  not  in  conflict  with  it.  The  sig- 
nificant part  of  the  opinion  is  the  passage  in  which  he  speaks 
of  the  principle  on  which  these  restrictions  Hmit  the  power 
of  Congress :  ''Doubtless,"  he  says,  "Congress,  in  legislating 
for  the  Territories,  would  be  subject  to  those  fundamental 
limitations  in  favor  of  personal  rights  which  are  formulated 
in  the  Constitution  and  its  amendments ;  but  these  limitations 
would  exist  rather  by  inference  and  the  general  spirit  of  the 
Constitution,  than  by  any  express  and  direct  application  of 
its  provisions."  This  marks  a  departure  in  the  theory  of  the 
Court  as  to  the  basis  upon  which  these  limitations  rest.  Of 
course,  granting  that  they  do  exist,  it  was  in  this  case  not 
necessary  to  decide  their  source.  But,  at  any  rate,  the 
opinion  shows  the  attitude  of  Mr.  Justice  Bradley,  if  not  of 
the  justices  who  concurred  with  him. 

In  Cook  V.  United  States,  138  U.  S.  157,  1891,  Mr. 
Justice  Harlan  takes  for  granted  that  the  second  section 
of  Article  III,  securing  the  right  of  trial  by  jury,  is  in  force 
in  the  Territories,  but  claims  it  is  not  in  that  case  violated 
(p.  182).  So  also  he  comes  to  the  same  conclusion  in 
regard  to  the  contention  of  the  defendant  that  the  law  under 
which  he  was  tried  was  ex  post  facto.  As  in  the  former 
cases  decided  by  this  judge,  the  theory,  apparent  in  the 
language  of  the  opinion,  is  that  the  express  provisions  of 
the  Constitution  are  immediately  and  directly  applicable. 

The  question  as  to  the  conflict  of  a  statute  of  the  Territory 
of  New  Mexico  with  the  Seventh  Amendment  arose  in 
Walker  v.  Southern  PaciHc  Railroad,  165  U.  S.  593,  1897, 
but  the  Court  deems  it  unnecessary  to  consider  the  conten- 
tion made  "that  the  Seventh  Amendment  is  not  operative  in 
the  Territories,"  since  trial  by  jury  had  been  secured  to  the 
Territory  by  an  act  of  Congress.  This  evasion  of  even  a 
dictum  upon  this  subject  makes  evident  that  the  Justice  who 
delivered  the  opinion  of  the  Court  (Justice  Brewer)  did 
not  regard  it  a  settled  question  whether  these  provisions  of 
the  Constitution  are  operative  per  se  in  the  Territories. 

This  doubt  in  his  mind  is  made  more  apparent  in  the 
opinion  delivered  by  him  little  more  than  a  month  later  in 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         9 1 

the  case  of  American  Publishing  Co.  v.  Fisher,  i66  U.  S. 
464,  1897,  where,  in  discussing  the  applicability  of  the  same 
Amendment,  he  refers  to  some  of  the  cases  on  both  sides 
of  the  question  and  then  avoids  the  issue  by  referring  to  the 
acts  of  Congress  extending  the  provisions  of  the  Constitu- 
tion over  the  Territory  and  securing  the  right  of  trial  by 
jury. 

And  yet  in  this  same  volume  of  the  reports,  in  an  opinion 
delivered  only  two  weeks  later  {Springville  v.  Thomas, 
166  U.  S.  707,  1897),  the  Court,  speaking  through  Mr. 
Chief  Justice  Fuller,  says:  "In  our  opinion  the  Seventh 
Amendment  secured  unanimity  in  finding  a  verdict  as  an 
essential  feature  of  trial  by  jury  in  common  law  cases,  and 
the  act  of  Congress  could  not  impart  the  power  to  change 
the  constitutional  rule,  and  could  not  be  treated  as  attempt- 
ing to  do  so" ;  and  the  Court  reversed  a  judgment  entered 
upon  a  verdict  returned  by  less  than  the  whole  number  of 
jurors. 

Referring  to  the  passage  just  quoted,  Mr.  Justice  Harlan 
says,  in  Thomson  v.  Utah,  170  U.S. 343, 1898 :  "It  is  equally 
beyond  question  that  the  provisions  of  the  National  Con- 
stitution relating  to  trials  by  jury  for  crimes  and  to  criminal 
prosecutions  apply  to  the  Territories  of  the  United  States." 
So  also  he  says:  "That  the  provisions  of  the  Constitution 
relating  to  the  right  of  trial  by  jury  in  suits  at  common  law 
apply  to  the  Territories  of  the  United  States  is  no  longer 
an  open  question."  Even  the  Sixth  Amendment,  it  is  inti- 
mated, is  applicable  (pp.  346,  347,  349),  but  whether  these 
provisions  are  applicable  because  they  are  intended  so  to  be, 
or  because  to  hold  otherwise  would  be  inconsistent  with 
those  fundamental  limitations  in  favor  of  life,  liberty  and 
property,  which  lie  at  the  basis  of  our  institutions  is  unde- 
cided. In  other  words,  we  derive  no  light  upon  the  general 
question,  the  answer  to  which  we  are  at  present  seeking. 
Mr.  Justice  Harlan  refers  to  the  language  of  various  cases, 
but  expresses  no  opinion  upon  this  question,  concluding  his 
citations  by  saying  merely:  "Assuming  then  that  the  pro- 
visions of  the  Constitution  relating  to  trials  for  crimes  and 
to  criminal  prosecutions  apply  to  the  Territories  of  the 
United  States,"  etc. 


92  THE    CONSTITUTIONAL    POWER    OF    CONGRESS 

It  was  taken  for  granted  in  Central  Loan  &  Trust  Co.  v. 
Campbell,  173  U.S. 84, 1899, at  page  97,  that  the  Fourteenth 
Amendment  was  controUing  in  the  Territories,  though  the 
Court  regards  the  act  in  question  as  not  in  conflict  therewith, 
and  does  not  go  into  a  discussion  of  the  nature  of  the  source 
of  the  Hmitation. 

So  in  Capital  Traction  Co.  v.  Hof,  174  U.  S.  i,  1899,  at 
pages  5  and  37,  it  was  assumed  that  the  provisions  in  the 
Federal  Constitution  securing  the  right  of  trial  by  jury 
in  civil  and  criminal  cases  applied  to  the  District  of  Co- 
lumbia, and  the  discussion  proceeded  on  that  basis. 

In  connection  with  these  cases,  which  deal  more  immedi- 
ately with  the  provisions  of  the  Constitution  securing  to 
the  citizen  protection  in  his  personal  and  proprietary  rights, 
we  wish  to  refer  again  to  the  case  already  cited  of  Lough- 
borough v.  Blake,  5  Wheaton,  317,  1820,  where  it  is  held 
that  a  general  direct  tax  is,  in  relation  to  the  District  of 
Columbia,  subject  to  the  rule  of  apportionment  just  as  such 
tax  is  subject  in  reference  to  any  State. 

On  the  other  hand,  we  have  the  recent  case,  to  which  we 
have  referred  several  times,  of  Goetze  &  Co.  v.  United 
States,  which  held  that  the  provision  requiring  uniformity 
of  taxation  throughout  the  United  States  was  inapplicable 
in  reference  to  the  Porto  Rican  tariff.  The  ground  of  this 
decision,  that  with  reference  to  the  organic  law  Porto  Rico 
is  not  a  part  of  the  United  States,  has  already  been  dwelt 
on,  as  also  the  line  of  distinction  it  drew  in  regard  to  the 
dicta  of  Loughborough  v.  Blake. ^^  We  wish  to  emphasize 
again,  that  it,  unlike  the  cases  referred  to  just  above,  does 
not  so  closely  touch  the  personal  and  proprietary  rights  of 
the  inhabitants  of  these  islands.  Where  a  question  of  that 
nature  arises,  the  Court  intimates,  legislation  infringing 
such  rights  might  be  held  unconstitutional,  not  as  being 
voided  by  the  express  terms  of  the  Amendments,  but  as 
being  contrary  to  the  principles  of  republican  govern- 
ment.^3  ^* 

"  V.  ante,  pp.  70  to  73. 
"  V.  ante,  p.  81. 

"It  is  worthy  of  note  in  passing  that  the  decision  is  with  reference 
to  goods   shipped  from   Porto  Rico  to   the  United   States.    A  very 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         93 

In  considering  the  results  of  these  cases  we  first  of  all  note 
that  certain  provisions  of  the  Constitution  have  been  held 
applicable  in  the  Territories,  viz.,  the  right  of  trial  by  jury- 
in  civil  and  criminal  cases,  as  provided  in  the  Constitution, 
the  guaranty  of  religious  freedom,  the  ex  post  facto  prohibi- 
tion, the  Fifth  Amendment,  the  clause  concerning  the  appor- 
tionment of  direct  taxes,  and  the  clause  guaranteeing  to  citi- 
zens of  each  State,  all  privileges  and  immunities  of  citizens 
of  the  several  States. 

This  is,  of  course,  the  immediate  effect  of  these  decisions, 
but  back  of  them,  as  the  basis  upon  which  they  rest,  we  find 
that  the  tendency  of  most  of  the  cases  is  to  regard  these 
provisions  as  operating  in  the  Territories  because  their  gen- 
eral language  was  intended  by  the  framers  of  the  instrument 
to  apply  in  this  manner,  and  not  merely  because  they  formu- 
late guaranties  of  security  and  liberty  which  are  the  funda- 
mental restraints  of  all  free  governments.  To  be  sure,  we 
have  found  opinions  which  tend  in  the  other  direction, 
principally  those  of  Mr.  Justice  Bradley  and  Mr.  Justice 
Brewer,  just  as  we  found  varying  views  when  we  considered 
the  general  language  used  by  the  Court.  But  the  greater 
number  of  the  decisions  have  shown  a  tendency  to  regard  the 
provisions  as  directly  applicable  ex  proprio  vigore.  It  is 
true  that  this  is  the  earlier  view,  and  that  cases  on  the  other 
side  have  appeared,  which,  if  they  have  not  marked  a  de- 
parture, have  not  been  without  influence  upon  later  cases, 
notably  the  case  of  Mormon  Church  v.  United  States, 
supra,  where  the  language  used  by  Mr.  Justice  Bradley,  to 
which  reference  has  been  made  several  times,  occurred. 

It  can  hardly  be  said  that  at  present  a  tendency  exists  in 
either  direction,  and  the  question  may  be  regarded  as  an  open 
one,  so  that  it  becomes  impossible  to  affirm  with  confidence 
what  would  be  the  decision  if  the  restriction  of  other  Amend- 
ments, not  yet  passed  on  by  the  Court,  should  be  claimed  to 

different  question  would  arise  in  reference  to  goods  shipped  from  a 
State  to  Porto  Rico.  In  such  case  the  clause  denying  to  Congress  the 
right  to  tax  the  exports  of  a  State  would  require  interpretation,  and  it 
is  difficult  to  believe  that  a  tax  could  be  collected  at  the  port  where  the 
goods  are  landed,  when  it  could  not  be  laid  at  the  port  where  the  goods 
are  shipped. 


94  THE    CONSTITUTIONAL   POWER   OF   CONGRESS 

exist.  Doubtless  considerations  such  as  those  mentioned 
in  the  general  language  of  the  Court,  referred  to  before,  as 
to  whether  the  restrictions  were  necessary  and  proper  to 
effectuate  the  object  for  which  the  territory  might  be  held, 
whether  they  flowed  from  its  "purposes  and  objects,'' 
whether  they  are  or  are  not  inconsistent  with  the  theory 
of  our  frame  of  government,  would  have  weight  in  aiding 
the  Court  to  decide  whether  the  people  in  framing  certain 
provisions  intended  their  operation  to  be  co-extensive  with 
the  territory  of  the  United  States,  or  limited  only  to  the 
States. 

It  is  a  significant  fact  that  in  no  case  in  regard  to  jurisdic- 
tion within  the  territory  of  the  United  States  has  a  limita- 
tion of  the  power  of  Congress  over  personal  or  proprietary 
rights  been  held  inapplicable.  Even  with  regard  to  the  Sixth 
Amendment,  which  seems  confined  by  its  wording  to  the 
States,  and  has  been  so  adjudged  in  several  cases,^^  it  has 
been  several  times  suggested  that  its  provisions  are  in  force 
in  the  territory  of  the  United  States;  and  these  facts,  to- 
gether with  the  number  of  cases  which  refer  immediately  to 
the  Amendments  as  controlling  per  se,  make  it  improbable 
that  the  Court  will  hold  any  general  provision  limiting  the 
power  of  Congress  over  personal  and  proprietary  rights  inap- 
plicable in  any  part  of  the  possessions  of  the  United  States. 
Even  Mr.  Justice  Bradley,  in  the  language  he  uses  in  Mor- 
mon Church  V.  United  States,  supra,  does  not  intimate  that 
he  regards  any  of  those  provisions  inapplicable,  but  rather 
that,  in  his  view,  they  are  a  formulation  of  the  restrictions 
on  all  free  governments,  applicable  expressly  in  the  States 
with  respect  to  the  legislation  of  Congress,  and  under  the 
spirit  of  the  Constitution  applicable  also  in  the  territory  of 
the  United  States. 

This  review  of  the  particular  instances  in  which  the  appli- 
cation of  certain  provisions  of  the  Constitution  to  the  terri- 
tory of  the  United  States  has  been  drawn  in  question,  en- 
ables us  to  consider,  if  not  conclusively,  at  any  rate  more 
clearly  the  general  language  of  the  Court  in  reference  to 
the  limitation  of  the  power  of  Congress.  The  same  variance 

"  V.  ante,  p.  66. 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         95 

in  views  has  appeared  here  as  appeared  there,  and,  as  has  just 
been  pointed  out,  the  cases  which  refer  the  restrictions  to 
other  sources  than  the  express  provisions  of  the  Constitution 
are  the  more  recent.  However  we  still  contend,  as  we  did 
then,  that  whichever  way  the  balance  may  turn,  it  is  still  pos- 
sible to  show  that  the  various  considerations  combine  to  ren- 
der applicable  the  guaranties  of  the  Constitution,  and  unite 
their  weight  to  produce  the  conviction  that  the  territory  of 
the  United  States  was  designed  to  be  governed  with  that  se- 
curity for  life,  liberty  and  property  which  is  enjoyed  in  the 
States. 

There  are  a  number  of  cases,  forming  as  it  were  a  class 
by  themselves,  to  which  reference  must  be  made  in  this  con- 
nection. These  are  the  cases  in  relation  to  the  courts  estab- 
lished under  the  authority  of  the  United  States  in  the  Ter- 
ritories. These  courts,  as  was  long  ago  held  in  American 
Insurance  Co.  v.  Canter,  i  Peters,  511,  1828,  are  not  the 
courts  provided  for  in  the  third  Article  of  the  Constitution, 
but  are  established  in  virtue  of  the  power  of  Congress  to 
legislate  for  the  territory  of  the  United  States.  Their  judges 
are  appointed  for  a  limited  period  only.  This  is,  of  course, 
not  in  accord  with  the  requirement  in  regard  to  the  judges 
of  the  courts  of  the  United  States,  whose  tenure  of  office  con- 
tinues, as  provided  in  the  first  section  of  Article  III  of  the 
Constitution,  "during  good  behavior."  But  this  difference 
is  justified  on  the  basis  that  this  provision  is  intended  only 
for  the  so-called  courts  of  the  United  States,  and  not  for 
the  courts  of  the  Territories  though  established  under  the 
authority  of  the  Federal  Government.  {McAllister  v. 
United  States,  141  U.  S.  174,  1891,  and  cases  cited.)  And 
yet  under  the  same  construction  it  would  be  natural  to  con- 
clude that  the  provision  in  the  second  section  of  the  same 
Article  requiring  that  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  tried  by  jury,  is  applicable  only  to  procedure 
in  the  courts  of  the  United  States,  and  not  to  Territorial 
courts,  but  we  have  seen  that  this  provision  has  expressly 
been  held  to  apply  to  the  Territories.^^  Both  clauses  occur 
in  the  same  Article  of  the  Constitution,  and  both  would 

"  V.  ante,  p.  65. 


g6  THE    CONSTITUTIONAL    POWER    OF    CONGRESS 

naturally  be  expected  to  have  the  same  scope.  When,  then, 
the  provision  of  the  first  section  is  restrained  to  the  so- 
called  constitutional  courts  of  the  United  States,  it  seems 
inconsistent  to  enlarge  the  scope  of  this  second  section 
beyond  this  same  limit. 

The  differing  lines  of  cases  have  not  been  compared  and 
distinguished  in  the  reports,  but  two  considerations  suggest 
themselves  as  affording  reasons  for  making  a  difference  in 
the  construction  of  these  two  sections. 

In  the  first  place,  since,  until  recently,  territory  has  been 
held  with  the  avowed  ultimate  object  of  Statehood,  the 
territorial  courts  have  necessarily  been  merely  temporary 
courts,  and  to  have  appointed  a  judge  for  life  might  have 
been  to  have  left  him  without  a  court  long  before  the  end  of 
his  life.  Now  the  courts  of  the  Constitution  are  intended 
to  be  permanent,  and  in  view  of  this  difference  it  may  well 
be  that  the  provision  as  to  the  tenure  of  office  extending 
"during  good  behavior,"  was  intended  only  for  the  per- 
manent courts.  No  difficulty  like  this  arises  in  regard  to 
the  requirement  that  all  crimes  be  tried  by  jury.  Whether 
the  court  be  temporary  or  permanent,  the  object  of  this 
requirement  is  just  as  necessary,  just  as  beneficial,  just  as 
easily  carried  out.  It  is  quite  reasonable,  therefore,  to 
regard  this  section  as  intended  for  all  courts  created  under 
the  authority  of  the  Federal  Government,  while  we  regard 
the  part  of  the  first  section  referred  to  just  above  as  in- 
applicable. 

In  the  second  place,  the  difference  in  the  importance  of 
the  provisions  will  be  at  once  observed.  The  life  tenure  of 
the  judges  holds  a  far  less  important  place  in  the  organiza- 
tion of  government  than  trial  by  jury,  which  has  come  to 
be  viewed  in  the  Anglo-Saxon  mind  almost  as  an  integral 
part  of  free  government.  The  requirement  of  trial  by  jury 
has  a  far  greater  influence  on  the  personal  and  proprietary 
rights  of  the  citizen  than  the  life  tenure  of  the  judges,  and 
it  might  well  be  believed  that  the  people  in  adopting  the 
Constitution  intended  this  provision  to  be  co-extensive  with 
the  judicial  authority  of  the  Government  throughout  its 
territory,  while  the  life  tenure  of  judicial  office,  however 
excellent  a  provision,  was  intended  to  be  confined  to  the 
courts  there  provided  for,  that  is,  the  constitutional  courts. 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         9/ 

But  whether  or  not  these  considerations  afford  substan- 
tial grounds  of  distinction,  the  class  of  cases  which  hold 
that  the  tenure  of  judges  in  the  Territories  may  be  limited 
do  so,  not  by  disregarding  a  provision  of  the  Constitution, 
but  by  interpreting  it  as  having  no  reference,  under  the  lan- 
guage of  the  instrument,  to  the  courts  of  the  Territories. 
These  cases,  then,  form  no  exception  to  the  statement  made 
above  that  in  no  instance  have  general  provisions  of  the 
Constitution  been  held  inapplicable  to  the  Territories,  since 
this  provision  of  the  Constitution,  in  consequence  of  the 
context,  is  not  a  general  provision,  but  is  limited  to  the  courts 
provided  for  in  that  Article. 

It  is  yet  to  be  decided  that  any  general  provision  of  the 
Constitution  relating  to  personal  or  proprietary  rights  is 
inapplicable  in  the  territory  of  the  United  States,  but  the 
cases  to  which  reference  has  been  made  clearly  demonstrate 
that  limitations  of  the  power  of  Congress  over  the  territory 
do  exist,  and  it  is  only  the  extent  of  these  limtations  that 
remains  a  question. 

Does  this  alter  the  position  taken  in  an  earlier  part  of  this 
paper^^  that  the  Territory  is  essentially  a  colonial  form  of 
government?  We  think  not.  The  government  under  which 
they  exist  is  imposed  upon  them  without  any  consent  of  their 
own.  If  it  is  a  limited  form  of  government,  the  limitations 
arise,  not  because  the  inhabitants  of  the  Territory  have 
so  willed  it,  but  because  their  rulers,  the  people  of  the  United 
States,  have  declared  it  to  be  their  will.  The  power  which 
exists  in  the  people  of  the  United  States  over  the  inhabitants 
of  their  territory  is  just  as  ample  as  that  existing  in  the 
British  people  over  their  colonies.  The  difference  is  that 
in  Great  Britain  all  this  power  is  immediately  in  the  hands 
of  Parliament,  while  in  our  country  the  people  of  the  United 
States  (using  that  term  in  its  limited  sense)  have  dele- 
gated to  Congress  only  part  of  their  authority.  But  the 
residue  might  be  delegated  at  any  time,  and  Congress  be 
made  as  omnipotent  with  respect  to  the  territory  of  the 
United  States,  as  is  Parliament  with  respect  to  the  colonies. 
It  is  not  the  mode  of  the  exercise  of  the  power  over  pos- 

"  V.  ante,  p.  39  ff. 


98  THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

sessions,  whether  gentle  or  harsh,  that  determines  the  co- 
lonial nature  of  a  government.  It  is  the  existence  of  the 
power.  Canada  may  have  as  free  a  government  as  a  Ter- 
ritory— is  either  less  a  colony  ?  Under  the  form  of  govern- 
ment prevailing  in  England,  Canada  might  be  deprived  of 
its  free  form  of  government  by  an  Act  of  Parliament.  A 
Territory  has  no  more  power  to  resist  such  a  change  with 
respect  to  itself  than  has  Canada.  The  people  of  the  United 
States  may  have  made  it  a  little  difficult  for  them  to  exercise 
the  power  they  possess,  but  that  does  not  meet  the  contention 
that  that  power  exists.  The  Territories  may  be  regarded 
as  "Constitutional  Colonies,"  but  colonies  they  undoubtedly 
are  in  view  of  the  fact  that  they  are  in  all  things  subject 
to  the  will  of  the  people  of  the  United  States,  and  that 
their  government  springs  not  from  themselves,  but  from 
the  determination  of  their  sovereign  owners. 

The  question  naturally  arises  at  this  point  in  regard  to 
the  application  of  these  limitations  of  the  power  of  Congress 
over  the  new  possessions  of  the  United  States.  The  de- 
cisions to  which  we  have  been  able  to  refer  have,  with  one 
exception,  and  that  a  lower  court  case,  been  in  reference  to 
territory  held  with  the  ultimate  object  of  Statehood.  The 
difference  in  racial  traits  and  traditions  between  the  inhabi- 
tants of  the  old  territory  and  of  the  new  possessions  is  a 
consideration  of  no  little  importance.  The  insular  character 
of  these  possessions,  and  the  fact  that  they  are  not  contigu- 
ous to  any  part  of  the  prior  territory  of  the  United  States, 
may  become  of  extreme  importance  in  finally  determining 
the  application  of  various  clauses  of  the  Constitution,  for 
example,  the  uniformity  of  taxation  clause  in  reference  to 
the  laying  of  duty  on  imports  (  a  question  already  passed 
on  by  the  lower  court).  It  is  impossible  to  say  to  what 
extent  the  provisions  of  the  Constitution  will  be  regarded 
as  intended  to  be  applicable  to  such  new  acquisitions,  and 
how  far  former  decisions  will  be  regarded  as  controlling. 
Undoubtedly  the  strongest  considerations  for  regarding 
these  limitations  in  force  in  these  islands  exist  with  refer- 
ence to  the  guaranties  of  personal  and  proprietary  rights, 
and  it  may  be  asserted  with  some  confidence  that  the  de- 
cisions affirming  the  existence  of  these  in  the  old  territory 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.         99 

would  be  held  controlling  with  reference  to  tfie  new  posses- 
sions. 

On  the  other  hand,  where  these  are  not  so  immediately 
concerned,  the  general  principle  several  times  alluded  to  in 
the  reports  that  the  powers  must  be  determined  by  the 
nature  of  the  purposes  and  objects  for  which  the  territory  is 
held,  might  become  the  test  of  the  existence  of  powers 
asserted  to  exist  in  Congress.  No  doubt  the  view  of  Mr. 
Justice  Bradley  that  there  are  fundamental  limitations  which 
restrain  all  free  governments  and  arise  from  the  very  spirit 
of  our  Constitution  would  be  of  weight  in  solving  particu- 
lar cases  in  which  these  "fundamental  limitations"  might  be 
claimed  to  have  been  invaded.  From  the  cases  which  have 
come  up  in  the  old  territory  arise  decisions  which  form 
the  best  precedents  from  which  a  study  of  these  new  problems 
can  be  made.  It  is  with  this  belief  that  this  review  of  the 
cases  has  been  made  and  their  general  result  sought  to  be 
deduced.  In  our  contention  that  the  Territory  is  a  tem- 
porary colony,  we  find  a  reason  for  believing  that  the  in- 
habitants of  the  new  possessions,  if  held  as  colonists,  must 
be  governed  under  the  same  limitations  as  to  personal  and 
proprietary  rights  as  the  inhabitants  of  the  old  Territories. 

The  requirement  insisted  on  in  Goetze  &  Co.  v.  United 
States,  of  incorporation  by  some  action  on  the  part  of  Con- 
gress before  territory  can  be  regarded  a  part  of  the  United 
States  in  relation  to  its  organic  law,  gives  us  a  principle, 
which  might  furnish  a  basis  of  distinction  for  a  case  arising 
in  the  new  territory  as  opposed  to  the  old,  which  Judge 
Townsend  claimed  had  been  incorporated.  Whether  this  prin- 
ciple shall  be  finally  adopted  by  the  United  States  Supreme 
Court  is  yet  to  be  decided,  but  its  use  in  this  case  is  another 
indication  of  the  wide  scope  argument  might  take  with  re- 
spect to  the  applicability  of  various  general  provisions  of  the 
Constitution. 

Of  course,  we  have  the  relations  of  the  United  States  with 
the  Indians  as  an  illustration  of  one  form  in  which  a  sub- 
ject people  may  be  governed.  If  this  mode  of  government 
is  constitutional,  and  it  is  undoubtedly  so  regarded  by  the 
Court,  it  furnishes  a  possible  form  which  the  control  of  these 
possessions  by  Congress  might  assume.     In  such  case  the 


lOO         THE    CONSTITUTIONAL   POWER   OF    CONGRESS 

authorities  we  have  cited  could  not  be  regarded  as  neces- 
sarily controlling.  It  is  not  our  purpose  to  go  into  the  subject 
of  the  relations  of  the  United  States  Government  with  the 
Indians,  but  we  may  refer  to  the  case  of  Talton  v.  Mayes, 
163  U.  S.  376,  1896,  where  it  was  decided  that  the  Fifth 
Amendment  to  the  Constitution  did  not  apply  to  local  legis- 
lation of  the  Cherokee  Nation  so  as  to  require  prosecutions 
for  offences  committed  against  the  laws  of  that  nation  to 
be  initiated  by  a  grand  jury,  as  prescribed  by  that  Amend- 
ment. Doubtless  the  relations  of  our  Government  with  these 
"dependent  domestic  nations"  has  been  largely  a  matter  of 
historical  growth,  to  which  fact  this  case  bears  witness. 
However  these  relations  are  parts  of  a  present  status,  which, 
in  a  modified  form,  might  be  set  up  in  the  new  possessions. 
Under  such  circumstances  it  appears,  under  the  decision  just 
cited,  that  local  legislation  would  not  necessarily  be  required 
to  conform  in  all  respects  to  the  provisions  of  the  Federal 
Constitution. 

These  questions  bring  us  largely  into  speculation.  Politi- 
cal problems  are  to  be  solved  and  the  form  of  government 
more  particularly  defined  and  established  before  full  and 
complete  discussion  can  take  place.  To  study  these  ques- 
tions has  not  been  the  purpose  of  this  paper,  but,  as  we  said, 
at  the  outset,  our  purpose  has  been  to  consider  the  basic  prin- 
ciples zvhich  thus  far  have  controlled  the  relations  of  the 
United  States  with  its  possessions.  This  we  believe  is  the 
source  from  which  can  be  derived  most  certainly  the  solution 
of  the  question  of  the  constitutionality  of  the  attitude  which 
the  Government  may  assume  towards  its  latest  acquisitions. 
It  is  with  this  purpose  that  we  have  studied  the  subject,  and 
in  the  more  than  brief  consideration  we  have  given  to  the 
new  possessions  of  our  Country,  we  have  merely  meant  to 
make  suggestions  in  passing  as  to  reasons  which  might 
tend  to  render  the  decisions  already  made  controlling  or 
otherwise. 

In  the  discussion  of  the  questions  to  which  we  have  given 
our  attention,  research  has  frequently  been  rendered  difficult 
in  view  of  the  scarcity  of  actual  decisions  upon  the  precise 
point  at  issue  or  upon  questions  closely  related.  In  many 
instances  we  have  been  compelled  to  rely  merely  upon  ex- 


OVER   THE   TERRITORY   OF   THE   UNITED   STATES.       1 01 

pressions  of  opinion  on  the  part  of  the  Court,  or  upon  the 
discussion  of  general  principles  preliminary  to  the  decision 
of  the  particular  matter  in  controversy.  Our  effort  has 
been  to  consider  what  can  be  regarded  as  authoritative  in 
the  Federal  reports  in  reference  to  the  Constitution  and  the 
territory  of  the  United  States,  and  also  those  parts  of  the 
cases  which  deal  at  greater  or  less  length  with  the  subject 
matter  of  our  paper — though  they  may  not  be  of  the  author- 
ity of  exact  decision — and  from  these  to  discover,  as  far  as 
possible,  not  merely  the  power  of  the  Government  over  its 
possessions,  but  also  the  fundamental  principles  which  are 
controlling  in  deciding  the  existence  or  non-existence  of  such 
power  in  the  United  States  Government,  believing  that  in 
so  doing  we  reach  a  point  from  which  we  can  best  consider 
the  problems  which  must  arise  in  the  future  in  reference  to 
the  latest  acquisitions  of  the  United  States. 


APPENDIX. 

Note  i.  We  have  omitted  from  our  discussion  the  case  of  Ex  parte 
Ortiz,  100  Fed.  955  (1900),  because,  so  far  as  it  bears  on  our  subject, 
its  language  is  purely  dictum,  and  consequently  it  has  not  seemed  an 
important  judicial  deliverance  in  regard  to  the  status  of  the  possessions 
of  the  United  States — especially  so,  since  it  is  but  the  opinion  of  a  single 
judge  in  a  district  court.  In  that  case  the  petitioner  (the  case  arose 
on  a  petition  for  a  writ  of  habeas  corpus)  had  been  tried  by  a  military 
tribunal  without  a  jury,  but  before  the  ratification  of  the  treaty  between 
Spain  and  the  United  States.  The  court  (Judge  Lochren)  holds  that 
the  Government  of  the  United  States  in  the  exercise  of  the  war  power 
is  justified  in  so  doing.  Not  stopping  here,  however,  the  court  enters 
upon  a  discussion  of  the  relation  of  the  government  to  the  new  territory, 
and  expresses  itself  as  of  the  opinion  that  if  Congress  derives  authority 
to  govern  such  territory  from  the  Constitution,  the  Constitution  in  toto 
extends  to  such  possessions.  It  seems  to  us  this  position  is  at  variance 
with  the  decision  itself.  The  judge  admits  that  the  authority  exercised 
by  Congress  is  a  granted  power,  being  derived  from  the  war  power, 
and  yet  does  not  hesitate  to  hold  that  all  the  restrictions  of  the  instru- 
ment do  not  bind  Congress  in  the  exercise  of  that  power.  So  it  is  just 
as  logical  to  claim  that  Congress  derives  its  power  over  acquired  terri- 
tory in  time  of  peace  from  the  Constitution,  without  being  forced  to  the 
conclusion  that  all  the  restrictions  applicable  to  the  legislation  of  Con- 
gress in  respect  to  the  States  apply  to  the  legislation  over  acquired  ter- 
ritory. The  practical  necessities  in  the  two  cases  may  vary,  but  the 
principles  involved  are  the  same.  As  we  have  sought  to  show  in  the 
body  of  our  essay,  confusion  apparently  has  arisen  from  considering  as 
one  the  two  questions,  viz.:  "Have  the  people  granted  to  Congress 
power  to  acquire  and  govern  territory  beyond  the  original  borders  of 
the  United  States?"    "Have  they  restricted  that  power?" 

Note  2.  We  have  been  unable  to  secure  a  report  of  the  decision  of 
the  Supreme  Court  in  the  late  case  in  which  the  extradition  of  Neely 
was  ordered.*  From  press  accounts,  it  seems  that  the  Supreme  Court 
has  decided  Cuba  to  be  a  "foreign  country"  within  the  meaning  of  the 
language  of  the  extradition  act,  and  "not  in  any  constitutional,  legal  or 
international  sense  a  part  of  the  territory  of  the  United  States,"  since 
such  was  not  the  purpose  of  the  war  with  Spain.  While  it  might  be  true 
that  between  the  United  States  and  all  foreign  nations  Cuba  was  to 
be  treated  as  conquered  territory,  yet  between  the  United  States  and 
Cuba  "that  island  is  territory  held  in  trust  for  the  inhabitants  of  Cuba, 
to  whom  it  rightfully  belongs."  The  case  apparently  leans  in  the  direc- 
tion of  the  distinction  drawn  in  the  case  of  Goetze  &  Co.  v.  U.  S.,  hold- 

1  This  case  is  now  reported  in  i8o  U.  S.  at  page  109,  under  the  caption  JVeely  v. 
Ifenkel. 

(102) 


APPENDIX.  103 

ing  that  a  different  point  of  view  must  be  taken  in  considering  the  rela- 
tion of  territory  to  the  United  States,  when  considered  from  the  stand- 
point of  a  foreign  nation  and  from  our  own  with  reference  to  our 
organic  law.  Of  course  the  questions  in  regard  to  Porto  Rico  and  the 
Philippines  arise  in  reference  to  territory  held  not  under  a  declared 
purpose  of  ultimate  separation  from  the  United  States ;  but  the  drawing 
of  such  a  distinction  at  least  furnishes  a  precedent  which  may  easily 
be  extended.  Practically  the  case  seems  to  recognize  the  purpose 
of  Congress  as  the  determining  factor  in  deciding  whether  territory 
shall  be  regarded  as  an  integral  part  of  the  United  States  in  reference  to 
its  organic  law.  This  is  the  ratio  decidendi  of  Goetse  &  Co.  v.  U.  S., 
and  it  is  hardly  too  much  to  say  that  the  Neely  Case  has  increased  the 
likelihood  of  the  affirmance  of  that  decision  by  the  Supreme  Court. 


SUPPLEMENT. 
The  Insular  Tariff  Cases. 

On  May  27,  1901,  opinions  were  delivered  by  the  S 
preme  Court  of  the  United  States  in  the  so-called  Insula 
Tariff  Cases.  As  these  were  handed  down  after  this  essay 
was  submitted  to  the  Faculty  of  the  Law  Department  of  the 
University  of  Pennsylvania,  it  was  impossible  that  they 
should  be  discussed  in  the  main  body  of  our  essay.  Since, 
however,  they  bear  directly  on  various  points  touched  upon, 
and  are  indirectly  indicative  of  the  attitude  of  that  Court 
upon  other  parts  of  our  subject,  it  has  seemed  worth  while 
to  append  a  discussion  of  what  seems  to  us  to  be  the  results 
of  these  decisions,  and  also  of  what  effect  they  may  have 
had  in  modifying  or  confirming  conclusions  already  formed. 

The  opinions  relate  to  the  tariff  imposed  on  articles  of 
commerce  shipped  between  Porto  Rico  and  the  United 
States,  and  comprise  three  classes  of  duties:  first,  those 
imposed  before  the  ratification  of  the  treaty  of  peace  between 
the  United  States  and  Spain;  second,  those  imposed  after 
such  treaty  under  the  Dingley  Act ;  third,  those  imposed  still 
later  under  the  Foraker  Act. 

As  to  the  first  of  these  classes  of  duties,  the  Court  is 
unanimous  in  holding  that  there  can  be  no  question  as  to  the 
right  of  the  Executive  under  the  war  power  to  levy  and 
collect  them;  Cross  v.  Harrison,  16  Howard,  182,  1853,  is 
relied  on  as  full  authority  for  this  position.  (Dooley  v. 
United  States,  21  Sup.  Ct.  Rep.  762,  181  U.  S. — ) 

As  to  the  second  class  of  duties,  those  collected  under 
the  Dingley  Act  after  the  ratification  of  the  treaty  of  peace 
referred  to,  the  decision  of  the  Court  turns  upon  the  inter- 
pretation of  the  words  "foreign  country"  as  used  in  that 
act.  It  is  decided  by  a  bare  majority  of  the  Court  that, 
upon  the  ratification  of  the  treaty,  Porto  Rico  ceased  to  be 
a  foreign  country  within  the  terms  of  the  act  and  hence  that 
duties  could  not  be  collected  under  it  on  articles  shipped 
between  that  island  and  the  United  States.  (De  Lima  v. 
Bidwell,  21  Sup.  Ct.  Rep.  743,  181  U.  S. — ) 

(104) 


SUPPLEMENT.  IO5 

As  to  the  third  class  of  duties,  those  collected  under  the 
'  »raker  Act,  which  prescribed  special  duties  on  articles  of 

mmerce  shipped  between  Porto  Rico  and  the  United 
states,  and  which  was  attacked  principally  on  the  ground 
that  it  failed  to  meet  the  constitutional  requirement  of  uni- 
)rmity,  the  Court  holds,  again  by  a  bare  majority,  that  it 
,  s  not  unconstitutional.  {Downes  v.  Bidwell,  21  Sup.  Ct. 
Rep.  770,  181  U.  S.— ) 

These  are  the  results  of  these  cases:  the  conclusion  of 
the  first  could  easily  have  been  anticipated.  The  second  and 
third  furnished  opportunities  for  divergence  of  opinion 
strikingly  illustrated  by  the  divided  attitude  of  the  Court. 
It  is  our  purpose  to  study,  as  far  as  we  may  be  able,  the 
theories  upon  which  these  two  cases  of  De  Lima  v.  Bidwell 
and  Downes  v.  Bidwell  proceed,  and  to  glean  from  them 
what  may  be  considered  as  settled  thereby,  and  to  discover 
what  advances  in  this  branch  of  constitutional  law  have 
been  made  by  their  decision. 

The  first  of  these  cases  decides  that  after  the  ratification 
of  the  treaty  of  peace  Porto  Rico  ceased  to  be  a  foreign 
country  "within  the  meaning  of  the  Dingley  Tariff  Act, 
which  by  its  terms  is  intended  to  fix  the  duties  which  'shall 
be  levied,  collected  and  paid  upon  all  articles  imported  from 
foreign  countries.'  "  This  is  the  precise  question  before  the 
Court,  and  the  decision  is  as  we  have  indicated;  but  Mr. 
Justice  Brown,  who  delivers  the  opinion  of  the  Court,  and 
with  whom  concur  Chief  Justice  Fuller  and  Justices  Harlan, 
Brewer  and  Peckham,  discusses  the  general  proposition  of 
whether  or  not  Porto  Rico  by  the  ratification  of  the  treaty 
of  peace  became  a  domestic  territory  of  the  United  States, 
and  not  foreign  in  any  sense.  It  is  impossible  to  read  his 
opinion  without  at  once  noting  that  the  grounds  of  his  de- 
cision are  based  upon  broader  considerations  than  a  mere 
interpretation  of  particular  legislative  language;  and  the 
fact  that  he  considered  the  question  in  this  light  appears  con- 
clusively from  the  first  sentence  in  the  second  branch  of  his 
opinion  in  Downes  v.  Bidwell,  supra  (at  p.  yy2),  where  he 
says :  "In  the  case  of  De  Lima  v.  Bidwell,  just  decided,  we 
held  that  upon  the  ratification  of  the  treaty  of  peace  with 
Spain,  Porto  Rico  ceased  to  be  a  foreign  country,  and  be- 


I06  SUPPLEMENT. 

came  a  territory  of  the  United  States,  and  that  duties  were 
no  longer  collectible  upon  merchandise  brought  from  that 
island."  To  the  same  effect  is  Mr.  Justice  Harlan's  sum- 
mary of  the  basis  of  that  decision,  when  he  says  in  his  dis- 
senting opinion  in  Dowries  v.  Bidwell  (at  p.  824)  :  ^'In  De 
Lima  v.  Bidwell,  just  decided,  we  have  held  that  upon  the 
ratification  of  the  treaty  with  Spain,  Porto  Rico  ceased  to 
be  a  foreign  country  and  became  a  domestic  territory  of  the 
United  States."  This  fact  is  further  evident  from  the  dis- 
senting opinion  in  De  Lima  v.  Bidwell,  where  Mr.  Justice 
McKenna,  with  whom  concur  Justices  White  and  Shiras, 
attacks  the  position  of  the  majority,  practically  on  the  theory 
put  forth  in  Goetze  &  Co,  v.  United  States  by  Judge  Town- 
send,^  that  the  "government  of  the  United  States  has  the 
power  to  acquire  and  hold  territory  without  immediately 
incorporating  it." 

This  attitude  of  the  majority  is  pointed  out  in  the  dis- 
senting opinion  in  Dooley  v.  United  States,^  where  it  is  said 
(at  page  768)  :  "There  is  a  non  sequitur  involved  in  stating 
that  the  question  is  whether  Porto  Rico  was  a  foreigti  coun- 
try within  the  meaning  of  the  tariff  laws,  and  then  discuss- 
ing, not  the  question  thus  stated,  but  a  different  subject,  that 
is,  whether  the  territory  ceded  by  the  treaty  with  Spain 
came  under  the  sovereignty  of  the  United  States  by  the  effect 
of  the  cession";  for  Mr.  Justice  Brown  had  defined  a  for^ 
eign  country  as  one  "exclusively  within  the  sovereignty  of  a 
foreign  nation,  and  without  the  sovereignty  of  the  United 
States,"  relying  for  this  definition  upon  Mr.  Chief  Justice 
Marshall  and  Mr.  Justice  Story,  and  citing  The  Boat  Eliza, 
2  Gall.,  4;  Taber  v.  United  States,  i  Story,  i;  The  Ship 
Adventure,  i  Brock,  235,  241. 

Again  in  Downes  v.  Bidwell,  Mr.  Justice  Brown,  admit- 
ting that  Porto  Rico  became  a  territory  of  the  United  States, 
holds  that  the  Foraker  Act  is  constitutional  on  the  ground 
that,  in  the  clause  of  the  Constitution  requiring  uniformity 
of  taxation  throughout  the  United  States,  the  words 
"United  States"  are  used  in  a  restrictive  sense  and  do  not 

*  V.  ante,  p.  70  ff. 

'  The  dissent  is  upon  a  different  proposition  from  that  which,  as  we 
said  just  above,  was  unanimously  decided  by  this  case. 


SUPPLEMENT.  10/ 

include  the  territories.  The  justices  who  concur  with  him 
in  the  result  which  he  reaches  do  so  not  because  they  agree 
with  him  in  this  view,  but  on  reasons  which  they  admit 
"are  different  from,  if  not  in  conflict  with"  those  expressed 
by  him.  The  concurring  opinion  of  Mr.  Justice  White  pro- 
ceeds on  the  theory  of  the  necessity  of  incorporation  by 
Congress,  thus  differing  from  Mr.  Justice  Brown,  who  is 
compelled  to  reach  his  result  on  some  other  basis,  since  he 
has  admitted  that  by  the  treaty  Porto  Rico  became  a  do- 
mestic territory  of  the  United  States. 

The  cases  from  all  points  of  view  show  unmistakably  that 
the  majority  of  the  Court  were  of  the  opinion  that  the  rati- 
fication of  the  treaty  of  peace  between  Spain  and  the  United 
States  was  sufficient  to  render  Porto  Rico  a  domestic  terri- 
tory of  the  United  States. 

Interesting  results  follow  from  this  conclusion.  In 
Downes  v.  Bidwell,  Mr.  Justice  Brown  finds  himself  associ- 
ated with  the  four  justices  who  dissented  from  his  views  in 
De  Lima  v.  Bidwell.  He  "announces  the  conclusion  and 
judgment  of  the  Court."  There  is  no  "opinion  of  the 
Court,"  and  none  of  the  concurring  justices  agrees  with  the 
views  expressed  by  Mr.  Justice  Brown.  In  fact  they  an- 
tagonize him  at  various  points.  He  does  not  believe  in  the 
necessity  of  incorporation;  they  do.  He  would  restrict  the 
scope  of  the  term  "United  States"  as  used  in  the  uniformity 
clause  of  the  Constitution  so  as  to  exclude  the  territories; 
Mr.  Justice  White,  with  whom  concur  Mr.  Justice  Shiras 
and  Mr.  Justice  McKenna,  holds  (at  p.  789)  that  "the 
power  just  referred  to  [viz.,  *to  lay  and  collect  taxes,'  etc.] 
as  well  as  the  qualification  of  uniformity  restrains  Congress 
from  imposing  an  impost  duty  on  goods  coming  into  the 
United  States  from  a  territory  which  has  been  incorporated 
into,  and  forms  a  part  of,  the  United  States."  In  this  part 
of  Mr.  Justice  White's  opinion  the  four  dissenting  judges  in 
Downes  v.  Bidwell  agreed.  It  is  apparent,  therefore,  that  a 
majority  of  the  judges  of  the  United  States  Supreme  Court 
think  that  Porto  Rico  is  incorporated  into  the  United  States, 
and  a  majority  think  that  when  territory  is  so  incorporated 
the  principle  of  uniformity  should  be  applied  to  Federal 
taxation,  and  yet  in  spite  of  this,  and  in  consequence  of  the 


I08  SUPPLEMENT. 

peculiar  division  of  opinion  which  occurred,  the  discrimi- 
nating duties  imposed  by  the  Foraker  Act  are  upheld. 

The  fact  that  Mr.  Justice  Brown  ''announces  the  con- 
clusion and  judgment  of  the  court"  is  somewhat  signifi- 
cant. No  one  of  the  concurring  judges  agrees  with  him. 
No  one  of  them  is  willing  to  subscribe  to  his  opinion.  In- 
stead, three  unite  in  an  opinion  which  antagonizes  his  at 
most  points,  and  finds  its  principal  agreement  with  it,  in  its 
conclusion.  It  would  be  natural  to  expect  that  this  opinion 
which  expressed  the  view  of  three  judges  should  have 
been  given  the  prominence  of  announcing  the  "judgment 
and  conclusion  of  the  Court."  But  it  is  not  unlikely  that 
the  opinions  are  arranged  as  they  are,  since  the  basis  upon 
which  these  three  judges  place  their  opinion  was  distinctly 
repudiated  by  a  majority  of  the  Court,  concurring  in  a 
single  opinion  in  De  Lima  v.  Bidwell.  Mr.  Justice 
Brown's  is  the  only  opinion  in  Downes  v.  Bidwell  that  fol- 
lows logically  the  conclusions  reached  in  the  preceding  case. 
The  concurring  opinions  delivered  are  only  possible  on  the 
theory  that  these  judges  completely  disregarded  the  con- 
clusions of  the  majority  in  De  Lima  v.  Bidwell. 

It  was  in  view  of  this  that  we  were  anxious  to  show  that 
the  opinion  in  this  latter  case  proceeded  upon  a  broader 
basis  than  would  have  been  absolutely  necessary  for  the  de- 
cision of  the  case.  This  may  have  been  a  reason  which 
the  concurring  judges  considered  sufficient  to  justify  them 
in  disregarding  its  theory,  but  it  is  a  rather  striking  fact  that 
a  majority  of  judges  should  concur  on  two  propositions  and 
yet  fail  of  reaching  the  only  conclusion  logically  flowing 
therefrom. 

In  view  of  this  it  is  not  difficult  to  imagine  combinations 
of  circumstances  under  which  the  Court  would  reach  con- 
clusions which  at  first  glance  would  seem  apparently  at 
variance  with  these  decisions.  Mr.  Justice  Brown  justifies 
the  Foraker  Act  on  an  interpretation  of  the  scope  of  a 
single  phrase  of  the  Constitution,  while  the  other  judges 
proceed  upon  a  discarded  theory.  If  the  facts  should  be 
such  as  to  separate  these  judges ;  if,  for  example,  the  clause 
of  the  Constitution  should  be  such  that  it  could  not  be  given 
so  restricted  an  interpretation,  or  if,  supposing  such  nar- 


SUPPLEMENT.  IO9 

row  interpretation  possible,  incorporation  had  occurred, 
these  judges  could  no  longer,  except  on  some  other  basis, 
reach  similar  results.  Only  under  the  unusual  divergence 
of  opinion  which  occurred  in  these  cases  were  the  results 
possible. 

We  have  not  as  yet  referred  to  the  attitude  of  Mr.  Justice 
Gray.  His  views  are  summed  up  in  a  very  short  concurring 
opinion  in  the  case  of  Dowries  v.  Bidwell.  He  announces 
his  concurrence  in  substance  with  the  opinion  of  Mr.  Justice 
White,  thus  subscribing  to  the  incorporation  theory;  but 
there  is  an  intimation  in  his  opinion  that  he  would  not  sup- 
port a  government  by  Congress  of  acquired  territory  as  a 
permanent  institution  except  under  the  limitations  of  the 
Constitution.  Thus  in  speaking  of  the  time  required  to 
establish  a  change  of  authority  in  conquered  territory,  he 
says  (p.  809)  :  "There  must,  of  necessity,  be  a  transition 
period/'^  And  later  in  his  opinion  he  says  (p.  8io)  :  'Tf 
Congress  is  not  ready  to  construct  a  complete  government 
for  the  conquered  territory,  it  may  establish  a  temporary^ 
government,  which  is  not  subject  to  all  the  restrictions  of 
the  Constitution."  There  is  an  undoubted  intimation  that 
he  supports  the  conclusions  of  the  majority  more  as  im- 
pressed by  the  idea  of  temporary  necessity  than  as  heartily 
indorsing  the  opinion  of  Mr.  Justice  White  as  a  principle  of 
permanent  constitutional  construction.  There  is  compara- 
tively little  to  confirm  us  in  this  conclusion,  and  yet  the  fact 
that  he  gives  expression  to  these  views,  and  in  particular  the 
fact  that  he  withholds  from  Mr.  Justice  White's  opinion  a 
simple  assent,  and  prefers  to  express  his  concurrence  in  a 
separate  opinion,  seems  to  us  of  significance. 

Having  thus  outlined  the  general  character  of  the  de- 
cisions, we  turn  to  examine  briefly  the  general  theories 
underlying  the  views  of  the  various  judges.  The  main 
difference  of  opinion  arises  over  the  question  of  the  neces- 
sity for  incorporation  into  the  United  States  by  Act  of 
Congress.  It  is  impossible  within  the  necessarily  narrow 
limits  of  this  discussion  to  give  an  exhaustive  treatment  of 
the  arguments  which  are  advanced  on  both  sides  of  this 

•  Italics  our  own. 


no  SUPPLEMENT. 

question.  It  is  this  question  which  divides  the  Court  in 
De  Lima  v.  Bidwell,  and  again  to  a  partial  extent  in  Downes 
V.  Bidwell.  Its  thorough  consideration  by  the  Supreme 
Court  was  therefore  imperative,  and  it  is  beyond  the  pur- 
pose of  this  supplement  to  examine  in  detail  the  many  con- 
siderations which  are  adduced  to  support  the  various  sides 
of  this  question. 

The  judges  who  believe  in  the  necessity  for  incorporation 
hold,  speaking  through  Mr.  Justice  White,  that  "when  the 
various  treaties  by  which  foreign  territory  has  been  acquired 
are  considered  in  the  light  of  the  circumstances  which  sur- 
rounded them,  it  becomes  to  my  mind  clearly  established 
that  the  treaty-making  power  was  always  deemed  to  be  de- 
void of  authority  to  incorporate  territory  into  the  United 
States  without  the  assent,  express  or  implied,  of  Congress, 
and  that  no  question  to  the  contrary  has  ever  been  mooted" 
(p-  799)-  On  the  other  hand  the  majority  judges  vigor- 
ously oppose  this  theory,  and  pertinently  ask  what  degree  of 
legislation  is  necessary  to  amount  to  incorporation.  The 
numerous  acts  passed  for  the  regulation  of  Porto  Rican 
affairs,  and  the  government  organized  for  its  control  are 
pointed  to,  and  it  is  urged  that  it  is  a  quibble  to  regard  incor- 
poration as  depending  on  the  simple  use  by  Congress  of  that 
word,  or  the  implied  assent  by  Congress  to  its  use  in  a  treaty 
by  legislation  recognizing  the  provisions  of  the  treaty.  Mr. 
Justice  Harlan,  in  concluding  his  dissent  in  Downes  v.  Bid- 
well  says  (at  p.  827)  :  "I  am  constrained  to  say  that  this 
idea  of  'incorporation'  has  some  occult  meaning  which  my 
mind  does  not  apprehend.  It  is  enveloped  in  some  mystery 
which  I  am  unable  to  unravel."  And  Mr.  Chief  Justice 
Fuller,  to  the  same  effect,  says  in  somewhat  striking  lan- 
guage (at  p.  820)  :  "The  contention  seems  to  be  that  if  an 
organized  and  settled  province  of  another  sovereignty  is 
acquired  by  the  United  States,  Congress  has  the  power  to 
keep  it,  like  a  disembodied  shade,  in  an  intermediate  state 
of  ambiguous  existence  for  an  indefinite  period ;  and,  more 
than  that,  that  after  it  has  been  called  from  that  limbo, 
commerce  with  it  is  absolutely  subject  to  the  will  of  Con- 
gress, irrespective  of  constitutional  provisions." 


SUPPLEMENT.  Ill 

More  reliance  is  placed  upon  legislative  and  executive 
construction  of  the  Constitution,  than  is  usual  in  a  consti- 
tutional case,  and  the  minority  especially  rely  upon  it  to 
sustain  their  theory  of  incorporation.  It  is  a  signifi- 
cant commentary  upon  the  peculiar  theory  of  govern- 
ment under  a  written  constitution  which  lies  at  the 
basis  of  our  institutions.  It  is  again  an  illustration  of  the 
freedom  of  construction,  which  judges  regard  as  necessary 
in  applying  an  instrument  which  formulates  a  system  of 
government  "intended  to  endure  for  ages,  and  to  be 
adapted  to  the  various  crises  of  human  affairs."  Although 
the  past  facts  of  our  nation's  history,  in  supporting  this 
theory  of  incorporation,  support  a  theory  which  of  itself  is 
not  sufficient  to  decide  the  case,  they  support  a  theory  which, 
taken  in  conjunction  with  another,  leads  to  a  conclusion,  felt 
by  many  persons  to  be  a  necessity  under  the  logic  of  events 
which  had  carried  the  country  to  a  situation  new  in  its 
aspect,  and  critical  in  its  influence. 

The  second  important  division  in  the  opinions  of  the 
members  of  the  Court  is  in  regard  to  the  scope  of  the  clause 
of  the  Constitution  requiring  uniformity  of  taxation.  Of 
course,  to  support  the  Foraker  Act  it  was  necessary  that  a 
majority  of  the  members  of  the  Court  should  have  held  this 
clause  inapplicable  to  the  case  in  hand.  We  do  not 
understand  any  members  of  the  Court  to  intimate  that  Con- 
gress is  exercising  a  power  not  granted  by  the  Constitution. 
The  power  to  acquire  territory  and  govern  it  is  given  by  that 
instrument.  The  Court  divides  in  its  opinion  as  to  whether 
the  limitations  of  the  Constitution  were  intended  to  restrict 
the  legislation  of  Congress  in  a  case  circumstanced  as  the 
one  before  it.     The  majority  holds  that  they  were  not. 

Four  of  these  judges  (White,  Gray,  McKenna  and 
Shiras)  proceed,  as  we  have  said,  on  the  ground  that  Porto 
Rico  has  not  been  incorporated  into  the  United  States,  and 
that  the  limitation  of  the  Constitution  requiring  uniformity 
of  taxation  does  not  apply  to  territory  so  situated.  Mr. 
Justice  Brown  has  precluded  himself  by  his  opinion  in  De 
Lima  v.  Bidwell  from  assenting  to  such  a  doctrine,  and  his 
opinion  proceeds  on  the  theory  that  though  Porto  Rico  has 
been  incorporated,  the  uniformity  of  taxation  clause  of  the 


112  SUPPLEMENT. 

Constitution  is  intended  to  apply  only  to  the  States,*  and 
that  therefore  it  cannot  be  invoked  to  affect  legislation  of  the 
kind  before  the  Court.  This  argument  is  met  by  Mr.  Chief 
Justice  Fuller  in  his  dissenting  opinion  by  the  following  con- 
tention :^  'It  is  evident  that  Congress  cannot  regulate  com- 
merce between  a  territory  and  the  States  and  other  terri- 
tories in  the  exercise  of  the  bare  power  to  govern  the  par- 
ticular territory,  and  as  this  act  was  framed  to  operate  and 
does  operate  on  the  people  of  the  States,  the  power  to  so 
legislate  is  apparently  rested  on  the  assumption  that  the 
right  to  regulate  commerce  between  the  States  and  Terri- 
tories comes  within  the  commerce  clause  by  necessary  im- 
plication. (Stoutenburgh  v.  Hennick,  129  U.  S.  141.)  .. 
.  In  any  point  of  view,  the  imposition  of  duties  on  com- 
merce operates  to  regulate  commerce,  and  is  not  a  matter  of 
local  legislation ;  and  it  follows  that  the  levy  of  these  duties 
was  in  the  exercise  of  the  national  power  to  do  so,  and  sub- 
ject to  the  requirement  of  geographical  uniformity."  This 
ingenious  argument,  which  appeals  to  us  as  of  great  force, 
does  not  directly  apply  to  the  question  which  more  immedi- 
ately concerns  us,  as  to  the  application  of  the  limitations  of 
the  Constitution  to  the  territories  uninfluenced  by  consid- 
erations of  a  contemporaneous  effect  on  the  States.  But  it 
is  followed  by  an  argument  drawn  from  the  general  theory 
of  our  institutions  contending  against  the  lodging  of  un- 
limited power  in  any  branch  of  the  government. 

The  prior  cases  are,  of  course,  fully  discussed  by  both 

•The  opinion  of  Mr.  Justice  Brown  goes  even  further  than  this,  for 
he  says,  in  general,  that:  "We  find  the  Constitution  speaking  only  to 
States,  except  in  the  territorial  clause,  which  is  absolute  in  its  terms, 
and  suggestive  of  no  limitation  of  the  power  of  Congress  in  dealing 
with  them"  (p.  786).  And  again  (at  p.  779)  :  "That  the  power  over 
the  territories  is  vested  in  Congress  without  limitation,  and  that  this 
power  has  been  considered  the  foundation  upon  which  the  territorial 
governments  rest,  was  also  asserted  by  Chief  Justice  Marshall  in 
McCulloch  V.  Maryland  (4  Wheat.  316,  422),  and  in  United  States  v. 
Gratiot  (14  Pet.  526)." 

But  in  this  broad  position  taken  by  Mr.  Justice  Brown,  and  in  his 
interpretation  of  these  authorities,  we  find  none  of  his  associates  con- 
curring. 

•V.p.813. 


SUPPLEMENT.  1 1 5 

sides,  and  the  uncertainty  of  their  conclusions  to  which  we 
referred  in  the  main  body  of  our  essay^  is  referred  to.  Thus 
Mr.  Justice  Brown  says,  in  his  opinion  in  Dozvnes  v.  Bidwell 
(p.  yy6)  :  "The  decisions  of  this  Court  upon  this  subject 
\i.  e.,  whether  there  is  a  difference  between  the  States  and 
territories  under  the  Constitution]  have  not  been  altogether 
harmonious.  Some  are  based  upon  the  theory  that  the 
Constitution  does  not  apply  to  the  territories  without  legis- 
lation. Other  cases,  arising  from  territories  where  such 
legislation  has  been  had,  contain  language  which  would 
justify  the  inference  that  such  legislation  was  unnecessary, 
and  that  the  Constitution  took  effect  immediately  upon  the 
cession  of  the  territory  to  the  United  States."  It  is  not 
surprising  then,  that  the  same  cases  are  cited  on  both  sides, 
with  almost  equal  confidence.  Thus  Mr.  Justice  McKenna 
says  of  the  case  of  Cross  v.  Harrison  (p.  756)  :  "The  curi- 
osity of  that  case  is  that  all  parties  cite  it,  and  this  court 
even  finds  it  as  convenient  and  as  variously  adaptive."  This 
fact,  together  with  the  remarkable  division  of  the  Court,  is 
confirmatory  of  our  position,*^  that  it  was  impossible  to 
predict  with  confidence  the  decision  of  these  cases. 

In  view  of  the  fact  that  the  prior  decisions  of  the  Court 
are  considered  in  this  light  by  the  various  justices,  it  be- 
comes difiicult  to  draw  definite  conclusions  from  these  de- 
cisions, and  still  more  so  in  view  of  the  extraordinary 
division  of  opinion  to  which  we  have  referred  above,  and 
which  rendered  the  present  decisions  possible.  It  is  inter- 
esting to  note  these  different  interpretations  in  a  few  lead- 
ing instances,  since  they  bear  directly  upon  questions  to 
which  attention  has  been  given  in  the  main  body  of  this 
essay. 

The  case  of  Loughborough  v.  Blake,  5  Wheaton,  317, 
1820,  is  on  its  facts  somewhat  similar  to  the  case  in  hand, 
but  the  language  used  in  that  case  by  Mr.  Chief  Justice 
Marshall^  is  of  immediate  application,  and  must  be  ex- 
plained in  some  way  by  the  majority  of  the  judges  in 
Downes  v.  Bidwell.  Those  judges  who  rely  upon  the  incor- 

"  V.  ante,  p.  93. 
'  V.  ante,  p.  98. 
■  V.  ante,  p.  70.  : 


114  SUPPLEMENT. 

poration  theory  have  no  difficulty  in  holding  that  what  was 
said  by  Mr.  Chief  Justice  Marshall  was  with  reference  to  in- 
corporated territory,  and  hence  is  inapplicable  to  unincor- 
porated territory  such  as  Porto  Rico.  Of  course,  Mr.  Justice 
Brown  cannot  rely  on  such  an  explanation,  and  he  meets 
the  case  in  a  different  manner.  It  is  generally  agreed  in 
this  case,  even  by  the  judges  who  insist  on  incorporation, 
that  when  once  Congress  has  declared  the  limitations  of  the 
Constitution  applicable  to  territory,  such  limitations  cannot 
subsequently  be  withdrawn.  What  is  said  is  largely 
dictum,  but  the  question  was  mooted  in  the  argument  of  the 
case  and  may  probably  be  regarded  as  settled.  Upon  what 
theory  this  is  so  is  not  definitely  stated.  Probably  it  may 
be  accounted  for  on  the  supposition  that  such  act  would 
determine  the  status  of  territory,  and  would  be  in  the  same 
case  with  an  act  admitting  a  new  State  into  the  Union,  and 
so  would  be  as  much  beyond  the  power  of  Congress  to 
change  as  is  such  latter  act.  At  any  rate  that  constitutional 
limitations  once  applied  cannot  be  withdrawn  is  clearly 
stated  to  be  the  view  of  the  Court.  Mr.  Justice  Brown, 
working  upon  this  theory  points  out  that  the  District  of  Co- 
lumbia was  formed  out  of  territory  originally  part  of  States, 
that  hence  the  uniformity  clause  had  applied  to  it,  and  could 
not  be  withdrawn,  merely  by  the  formation  of  the  District 
of  Columbia  under  a  separate  government.  In  this  way  the 
decision  of  the  case  is  explained  and  the  observations  made 
by  the  Court,  though  admitted  by  Mr.  Justice  Brown  to 
cause  "embarrassment,"  are  claimed  to  constitute  merely  a 
dictum.  Mr.  Chief  Justice  Fuller  in  his  dissenting  opinion 
in  Dowries  v.  Bidwell  regards  this  attitude  as  unjustifiable, 
saying  (at  p.  812)  :  "It  is  wholly  inadmissible  to  reject  the 
process  of  reasoning^  by  which  the  Chief  Justice  reached  and 
tested  the  soundness  of  his  conclusion  as  merely  obiter."  He 
likewise  points  out  that  the  explanation  suggested  by  Mr. 
Justice  Brown  finds  no  support  in  the  opinion  of  the  Court 
which  decided  the  case.  This  is  by  no  means  the  only 
instance  in  these  cases  in  which  one  judge  relies  on  passages 
in  a  case  which  another  judge  contends  are  merely  dictum. 

•  Italics  our  own. 


SUPPLEMENT.  II5 

Another  noteworthy  instance  is  the  case  of  Fleming  v. 
P(^g^j  9  Howard,  603.  Here  again  we  find  illustration  of 
the  uncertainty  of  prior  judicial  opinion  upon  the  questions 
involved  in  the  case  before  the  Court. 

Again,  in  regard  to  the  Thirteenth  Amendment  to  the 
Constitution,  the  peculiarity  of  whose  language  we  have 
already  referred  to,^^  the  judges  who  rely  on  incorporation 
as  a  test,  as  well  as  Mr.  Justice  Brown  in  upholding  his  re- 
strictive interpretation  of  the  word  ''United  States"  in  the 
uniformity  clause,  claim  that  support  is  given  to  their 
theories  by  the  significance  of  the  language  of  this  Amend- 
ment in  drawing  a  distinction  between  the  "United  States," 
and  a  "place  subject  to  their  jurisdiction."  Thus  Mr. 
Justice  White  says,  in  his  concurring  opinion  in  Downes  v. 
Bidwell  (p.  806)  :  "Obviously  this  provision  recognized  that 
there  may  be  places  subject  to  the  jurisdiction  of  the  United 
States,  but  which  are  not  incorporated  into  it,  and  hence  are 
not  within  the  United  States  in  the  completest  sense  of 
those  words."  Mr.  Chief  Justice  Fuller,  answering  this 
argument  says,  at  page  814 :  "Clearly  this  prohibition  would 
have  operated  in  the  territories  if  the  concluding  words  had 
not  been  added.  The  history  of  the  times  shows  that  the 
addition  was  made  in  view  of  the  then  condition  of  the 
country — the  amendment  passed  the  House  January  31, 
1865 — and  it  is  moreover- otherwise  applicable  than  to  the 
territories.  Besides,  generally  speaking,  when  words  are 
used  simply  out  of  abundant  caution  the  fact  carries  little 
weight." 

One  more  instance  of  the  differing  way  in  which  the 
Court  meets  apparently  important  considerations  in  coming 
to  its  conclusions,  will  be  referred  to.  The  Dred  Scott  Case 
was  undoubtedly  a  direct  decision  to  the  effect  that  certain 
provisions  of  the  Constitution  are  in  force  in  the  territories. 
All  the  judges  who  were  members  of  the  Court  at  the  time 
of  that  decision  admitted  it,  and  it  of  course  lends  its  sup- 
port to  the  contention,  that  the  provision  of  the  Constitution 
here  drawn  in  question  should  be  enforced  in  such  territory. 
Thus  Mr.  Justice  Brown  says  (p.  782)  :  "It  must  be  ad- 

''  V.  ante,  p.  68  flf. 


Il6  SUPPLEMENT. 

mitted  that  this  case  is  a  strong  authority  in  favor  of  the 
plaintiff,  and  if  the  opinion  of  the  Chief  Justice  be  taken  at 
its  full  value  it  is  decisive  in  his  favor."  But  he  adds :  "It 
is  sufficient  to  say  that  the  country  did  not  acquiesce  in  the 
opinion,  and  that  the  civil  war,  which  shortly  thereafter 
followed,  produced  such  changes  in  judicial,  as  well  as 
political  sentiment,  as  to  seriously  impair  the  authority  of 
this  case."  On  the  other  hand  Mr.  Justice  White,  who 
relies  on  the  incorporation  test  and  thus  distinguishes  the 
case  in  hand  from  the  Dred  Scott  Case,  holds  (at  page  788), 
that  with  regard  to  incorporated  territory:  "Every  pro- 
vision of  the  Constitution  which  is  applicable  to  the  terri- 
tories is  also  controlling  therein.  To  justify  a  departure 
from  this  elementary  principle  by  a  criticism  of  the  opinion 
of  Mr.  Chief  Justice  Taney  in  Scott  v.  Sandford  (19  How. 
393  )  y  appears  to  me  to  be  unwarranted.  Whatever  may  be 
the  view  entertained  of  the  correctness  of  the  opinion  of  the 
Court  in  that  case,  in  so  far  as  it  interpreted  a  particular 
provision  of  the  Constitution  concerning  slavery  and  de- 
cided that  as  so  construed  it  was  in  force  in  the  territories, 
this  in  no  way  affects  the  principle  which  that  decision  ?m- 
nounced,  that  the  applicable  provisions  of  the  Constitution 
were  operative.  That  doctrine  was  concurred  in  by  the 
dissenting  judges,  as  the  following  excerpts  demonstrate 
[quoting]." 

Striking  contrasts  are  thus  exhibited  in  the  interpretation 
of  former  decisions  and  it  is  difficult  to  draw  conclusions 
as  to  what  may  be  regarded  as  the  correct  view  of  the 
earlier  cases.  The  incorporation  test  gives  the  Court  free- 
dom in  its  decision  of  the  problems  arising  in  connection 
with  the  new  possessions  of  the  government,  since  it  prac- 
tically places  the  Court  in  a  position  where  almost  all  former 
authority  can  be  distinguished  upon  the  ground  that  it 
applied  to  incorporated  territory.  But  this  test  is  rejected 
by  the  Court  in  De  Lima  v.  Bidwell. 

On  the  other  hand,  so  far  as  we  can  gather  from  the 
cases,  Mr.  Justice  Brown  stands  alone  in  the  restrictive 
interpretation  which  he  applies  to  the  uniformity  clause, 
since  the  judges  who  concur  with  him  in  the  result  expressly 
hold  that  under  the  same  facts  they  would  regard  that  clause 


SUPPLEMENT.  II7 

applicable  if  the  case  had  arisen  with  reference  to  incor- 
porated territory.  What  is  said  on  the  part  of  these  judges, 
while  not  precisely  outlining  the  provisions  of  the  Constitu- 
tion which  they  would  deem  applicable,  clearly  demonstrates 
that,  as  to  incorporated  territory,  the  Constitution  would  be 
regarded  by  them  as  applicable  in  more  of  its  provisions 
than  would  follow  from  the  opinion  of  Mr.  Justice  Brown. 
Undoubtedly  there  remains  much  land  yet  to  be  possessed 
in  this  part  of  the  law,  and  while  these  decisions  have  settled 
some  things,  even  a  cursory  study  cannot  but  impress  one 
with  the  unsatisfactory  nature  of  the  results,  largely  due,  it 
seems  to  us,  to  the  fact  that  the  concurring  judges  in 
Downes  v.  Bidwell  reached  their  conclusions  on  such  in- 
consistent grounds. 

Upon  one  point  there  is  a  general  agreement  among  the 
members  of  the  Court.  This  is  as  to  the  applicability  of 
those  general  restraints  upon  the  legislation  of  Congress 
which  protect  personal  and  proprietary  rights,  a  point  to 
which  reference  was  made  several  times  in  our  general 
treatment  of  the  subject.^*  Thus  Mr.  Justice  Brown  says, 
at  page  783,  in  Downes  v.  Bidwell:  "To  sustain  the  judg- 
ment in  the  case  under  consideration  it  by  no  means  becomes 
necessary  to  show  that  none  of  the  articles  of  the  Consti- 
tution apply  to  the  island  of  Porto  Rico.  There  is  a  clear 
distinction  between  such  prohibitions  as  go  to  the  very  root 
of  the  power  of  Congress  to  act  at  all,  irrespective  of  time 
or  place,  and  such  as  are  operative  only  'throughout  the 
United  States'  or  among  the  several  States.  Thus,  when 
the  Constitution  declares  that  'no  bill  of  attainder  or  ex  post, 
facto  law  shall  be  passed,'  and  that  'no  title  of  nobility  shall 
be  granted  by  the  United  States,'  it  goes  to  the  competency 
of  Congress  to  pass  a  bill  of  that  description.  Perhaps  the 
same  remark  may  apply  to  the  First  Amendment,  that  'Con- 
gress shall  make  no  law  respecting  an  establishment  of  re- 
ligion, or  prohibiting  the  free  exercise  thereof;  or  abridg- 
ing the  freedom  of  speech  or  of  the  press ;  or  the  right  of  the 
people  to  peacefully  assemble,  and  to  petition  the  govern- 
ment for  a  redress  of  grievances.' "     But  he  adds :  "We 

"  V.  ante,  pp.  97,  98. 


Il8  SUPPLEMENT. 

do  not  wish,  however,  to  be  understood  as  expressing  an 
opinion  how  far  the  bill  of  rights  contained  in  the  first  eight 
amendments  is  of  general  and  how  far  of  local  applica- 
tion." 

To  the  same  effect  is  the  language  of  Mr.  Justice  White 
(at  p.  790)  :  "The  distinction  which  exists  between  the  two 
characters  of  restrictions,  those  which  regulate  a  granted 
power  and  those  which  withdraw  all  authority  on  a  particu- 
lar subject,  has  in  effect  been  always  conceded,  even  by  those 
who  most  strenuously  insisted  on  the  erroneous  principle 
that  the  Constitution  did  not  apply  to  Congress  in  legislating 
for  the  territories,  and  was  not  operative  in  such  districts 
of  country."  And  in  another  part  of  his  opinion  he  says 
(p.  791)  :  "The  doctrine  that  those  absolute  withdrawals 
of  power  which  the  Constitution  has  made  in  favor  of 
human  liberty  are  applicable  to  every  condition  or  status  has 
been  clearly  pointed  out  by  this  court  in  Chicago,  Rock  Is- 
land, etc.,  R.  R.  Co.  V.  McGlinn  (1885),  114  U.  S.  542." 
The  dissenting  judges  in  Downes  v.  Bidwell  of  course 
would  hold  these  provisions  as  well  as  other  portions  of 
the  Constitution  restrictive  of  the  action  of  Congress.  Not- 
withstanding, therefore,  the  somewhat  non-committal  lan- 
guage of  Mr.  Justice  Brown  quoted  above,  it  seems  safe 
to  predict  that  the  guaranties  given  to  personal  and  pro- 
prietary rights  by  the  early  amendments  to  the  Constitution 
will  be  held  restrictive  of  the  legislation  of  Congress  in 
reference  to  our  latest  acquisition.  More  doubt  exists  as  to 
whether  the  customary  forms  of  securing  those  rights  will  be 
regarded  as  necessarily  operative  in  the  new  territory. 

These  cases  leave  undecided  the  question  of  the  consti- 
tutionality of  duties  on  goods  shipped  from  the  United 
States  to  Porto  Rico.  We  have  already  expressed  a  doubt 
as  to  the  possibility  of  allowing  this  in  view  of  the  con- 
stitutional provision  forbidding  a  tax  on  exports  of  a 
State.^^  The  case  of  Dooley  v.  United  States  sanctions 
such  a  tax  under  the  exercise  of  the  war  power.  We  find 
nothing  in  these  latest  cases  to  lead  to  the  belief  that  such  a 
tax  in  time  of  peace  would  be  constitutional.     Even  admit- 

"  V.  ante,  p.  92. 


SUPPLEMENT.  119 

ting  the  incorporation  theory  to  be  correct,  it  still  seems  to 
us  that  a  tax  on  goods  shipped  from  a  State  to  Porto  Rico, 
would  be  as  much  a  tax  on  exports  if  collected  at  Porto ' 
Rico,  as  if  collected  at  the  port  of  the  State  from  which  they 
might  be  shipped,  and  except  upon  some  highly  artificial 
basis,  such  tax,  we  believe,  would  be  held  unconstitutional. 

We  note  finally,  in  concluding  this  brief  discussion  of 
these  recent  cases,  the  great  weight  which  was  given  by  the 
judges  who  constituted  the  majority  in  Dowries  v.  Bid- 
well,  to  arguments  drawn  from  expediency.  We  do  not 
refer  so  much  to  any  particular  passage,  as  to  the  constant 
tendency  to  bring  into  consideration  the  difficulties  which  it 
is  conceived  would  arise  from  holding  the  limiting  provisions 
of  the  Constitution  immediately  and  fully  controlling  in  the 
territory.  Throughout  the  opinions  passages  constantly 
occur,  and  the  statement  we  have  made  above  is  borne  out 
more  by  the  general  tone  of  these  opinions  than  by  their  pre- 
cise language.  It  is  not  difficult,  however,  to  cite  instances 
which  illustrate  the  nature  of  the  argument  which  is  deemed 
worthy  of  serious  consideration.  Thus  Mr.  Justice  White 
says  (p.  794)  :  "It  is  insisted,  however,  conceding  the  right 
of  the  government  to  acquire  territory,  as  all  such  territory 
when  acquired  becomes  absolutely  incorporated  into  the 
United  States,  every  provision  of  the  Constitution  which 
would  apply  under  that  situation  is  controlling  in  such  ac- 
quired territory.  This,  however,  is  hut  to  admit  the  power 
to  acquire  and  immediately  to  deny  its  beneficial  exist- 
ence/'^^ And  again  (same  page)  :  "To  concede  to  the 
government  of  the  United  States  the  right  to  acquire  and  to 
strip  it  of  all  power  to  protect  the  birthright  of  its  own 
citizens  and  to  provide  for  the  well-being  of  the  acquired 
territory  by  such  enactments  as  may  in  view  of  its  condition 
be  essential,  is,  in  effect,  to  say  that  the  United  States  is 
helpless  in  the  family  of  nations,  and  does  not  possess  that 
authority  which  has  at  all  times  been  treated  as  an  incident 
of  the  right  to  acquire." 

As  further  illustrating  this  feature  of  the  cases,  and  as 
indicating  considerations  which  will  be  regarded  as  of  im- 

"  Italics  our  own. 


I20  SUPPLEMENT. 

portance  in  the  future,  we  quote,  in  conclusion,  a  passage 
from  the  last  part  of  the  opinion  of  Mr.  Justice  Brown  in 
Dowries  v.  Bidwell  (p.  786)  : 

"Patriotic  and  intelligent  men  may  differ  widely  as  to 
the  desirableness  of  this  or  that  acquisition,  but  this  is 
solely  a  political  question.  We  can  only  consider  this  as- 
pect of  the  case  so  far  as  to  say  that  no  construction  of  the 
Constitution  should  be  adopted  which  would  prevent  Con- 
gress from  considering  each  case  upon  its  merits,  unless 
the  language  of  the  instrument  imperatively  demand  it.  A 
false  step  at  this  time  might  be  fatal  to  the  development  of 
what  Chief  Justice  Marshall  called  the  American  Empire. 
Choice,  in  some  cases,  the  natural  gravitation  of  small  bodies 
towards  large  ones  in  others,  the  result  of  a  successful  war 
in  still  others,  may  bring  about  conditions  which  would 
render  the  annexation  of  distant  possessions  desirable.  If 
those  possessions  are  inhabited  by  alien^*  races,  differing 
from  us  in  religion,  customs,  laws,  methods  of  taxation 
and  modes  of  thought,  the  administration  of  government 
and  justice  according  to  Anglo-Saxon  principles,  may  for 
a  time  be  impossible ;  and  the  question  at  once  arises  whether 
large  concessions  ought  not  to  be  made  for  a  time,  that, 
ultimately,  our  own  theories  may  be  carried  out,  and  the 
blessings  of  a  free  government  under  the  Constitution  ex- 
tended to  them.  We  decline  to  hold  that  there  is  anything 
in  the  Constitution  to  forbid  such  action." 


"  V.  ante,  p.  98. 


^-v^SS^M 


